Citation Nr: 21066602 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-65 830 DATE: November 1, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. New and material evidence having been received, the claim of entitlement to service connection for joint pain, upper extremities, is reopened. New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened. REMANDED Entitlement to a rating in excess of 10 percent for the service-connected left ankle disability is remanded. Entitlement to service connection for hypertension, to include as secondary to the service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for sleep apnea, to include as secondary to the service-connected PTSD, is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for joint pain, upper extremities, is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for hypertension, sleep apnea and upper extremity joint pain was first denied by way of a February 2012 rating decision on the basis that there was no relationship between the Veteran's claimed disabilities and his active service. 2. Subsequent decisions in August 2014 and in October 2014 again denied service connection for hypertension and sleep apnea finding no new and material evidence had been received. 3. The evidence related to upper extremity joint pain received since February 2012, and the evidence related to hypertension and sleep apnea received since October 2014, is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for joint pain upper extremities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been presented to reopen the claim of entitlement to service connection for service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1985 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided hearing testimony before the undersigned in June 2021. A transcript of that hearing is within the record before the Board. New and Material Evidence Claims Generally, a claim that has been denied in a final RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U. S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). In February 2012, the RO denied the Veteran's claims for service connection for hypertension, sleep apnea and upper extremity joint pain. With regard to hypertension, the RO recognized in-service indications of elevated blood pressure, but found that the medical evidence supports the conclusion that "a persistent disability was not present in service and occurred only during surgery." The sleep apnea claim was denied on the basis that there were no complaints, treatment, or diagnosis of sleep apnea during the Veteran's active service. And, the upper extremity claim was denied on the basis that a VA medical opinion found no link between the Veteran's diagnosed medical condition and his military service as there was no complaints, treatment or diagnosis noted in the service treatment records. The Veteran did not file a notice of disagreement with the February 2012 decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Subsequently, the Veteran filed claims to reopen whether service connection is warranted for sleep apnea in March 2014, and for hypertension in April 2014. The RO declined to reopen both claims by way of an August 2014 rating decision. Later in August 2014, the Veteran again claimed service connection for sleep apnea and hypertension. In October 2014, the RO issued a rating decision declining to reopen both claims. The Veteran did not file a notice of disagreement with either rating decision, and both became final. Id. The Veteran filed the current claim to reopen in August 2016. Hypertension The evidence of record at the time of the October 2014 rating decision, which is the most recent final decision on the hypertension claim, included the Veteran's service treatment records from July 17, 1985 to August 25, 1992, VA treatment records dated from June 2010 to August 2011, and from April 2013 to June 2014, and private treatment records showing the diagnosis of hypertension. The records received since the October 2014 decision include, in pertinent part, some ongoing VA treatment records, as well as the Veteran's June 2021 hearing testimony. The Veteran indicated at the hearing that he had high blood pressure in service, that he was prescribed medication for it immediately after service and that it has continued since. The Veteran also testified that his hypertension has a causal connection to his service-connected PTSD. This new evidence pertains to the basis of the prior denial and presents the possibility of substantiating the claim with additional development. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is not cumulative or redundant of the evidence previously of record. Rather, it suggests a potential causal connection between the Veteran's current hypertension and his active service, or, in the alternative, a causal connection between the hypertension and a service-connected disability. Moreover, this evidence is material in that it was the lack of evidence of such a causal connection that was the basis of the prior denial. Accordingly, reopening of the claim for service connection for hypertension is warranted. Joint Pain, Upper Extremities The evidence of record at the time of the February 2012 rating decision, which is the most recent final decision on the upper extremity joint pain claim, included the Veteran's service treatment records, post-service private clinical records showing treatment for right shoulder pain in June 1997, VA treatment records dated from June 2010 to August 2011, and a July 2011 VA examination report. The VA examiner provided an opinion as to whether any joint complaints were a part of a multisymptom undiagnosed illness related to the Veteran's Gulf War service, but did not provide any indication of whether there was a direct causal connection to the Veteran's active service. The records received since the February 2012 rating decision include, in pertinent part, the Veteran's hearing testimony, during which he confirmed that his claim related to the upper extremities is a claim for pain and numbness in his shoulders. The Veteran also described injuring his shoulders in service during a fall in Germany in 1987. The Veteran's representative suggested there are documents confirming this fall. A review of the file does not include such, but the Veteran's service personnel records indeed show the Veteran was stationed in Germany in 1987. This new evidence pertains to the basis of the prior denial and presents the possibility of substantiating the claim with additional development. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is not cumulative or redundant of the evidence previously of record. Rather, it suggests a potential for finding an in service incurrence of a shoulder injury. Moreover, this evidence is material in that it was the lack of evidence of an in service incurrence that was the basis of the prior denial. Accordingly, reopening of the claim for service connection for a disability manifested by joint pain and numbness in the upper extremities is warranted. Sleep Apnea The evidence of record at the time of the October 2014 rating decision, which is the most recent final decision on the sleep apnea claim, included the Veteran's available service treatment records from July 17, 1985 to August 25, 1992, VA treatment records dated from June 2010 to August 2011, and from April 2013 to June 2014, and private treatment records. The records received since the October 2014 decision include, in pertinent part, a May 2016 private opinion from D.G., FNP-C. This clinician opined that it is at least as likely as not that the Veteran's sleep apnea is aggravated by his service connected PTSD. The clinician suggested the PTSD makes it difficult for the Veteran to tolerate his CPAP, as well as making it difficult for the Veteran to sleep at all. This new evidence pertains to the basis of the prior denial and presents the possibility of substantiating the claim with additional development. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is not cumulative or redundant of the evidence previously of record. Rather, it suggests a potential causal connection between the Veteran's sleep apnea and a service connected disability. Moreover, this evidence is material in that it was the lack of evidence of such a causal connection to service that was the basis of the prior denial, with no consideration of whether the sleep apnea could be causally connected to a service connected disability. Accordingly, reopening of the claim for service connection for sleep apnea is warranted. REASONS FOR REMAND Increased Rating Left Ankle The Veteran is service-connected for a left ankle disability and he contends a rating in excess of 10 percent is warranted. At the time of his June 2021 hearing, he reported that his ankle is constantly swollen, immobile, and feels like it is almost frozen. The Veteran's most recent ankle examination was in August 2016, which was more than five years ago. His recent hearing testimony suggests his ankle condition has worsened since that most recent examination. The Board finds a remand is necessary in order to allow the Veteran the opportunity to undergo a current examination of his ankle. Hypertension and Sleep Apnea The Veteran has claimed that both his hypertension and sleep apnea are causally connected to his service-connected PTSD. To date, he has not been afforded an examination and opinion to address this aspect of his claims. The Board finds a remand is necessary in order to allow the Veteran the opportunity to undergo an examination for both his hypertension and his sleep apnea to assess the nature of each disorder, as well as to address whether either or both were caused or are being aggravated by his PTSD. Moreover, there are indications of elevated blood pressure during the Veteran's active service, which was recognized by the RO in its February 2012 rating decision. The Veteran, at his Board hearing, indicated he was prescribed medication to treat the high blood pressure shortly after his separation from service. The Veteran is not competent to diagnose hypertension, however, he is competent to report receiving a prescription for blood pressure medication. While records from immediately following service are not in the claims file, the Veteran's post-service private treatment records do show ongoing high blood pressure and indicate he was on blood pressure medication by at least 2000. The Board finds the opinion on the hypertension issue should also include an opinion as to whether the Veteran's hypertension is directly related to his active service, taking into account all medical and lay evidence of record. Gulf War Service Examination At the June 2021 Board hearing, the Veteran's representative suggested the symptoms related to the Veteran's irritable bowel syndrome claim are related to his service in the Southwest Asia Theater of Operations. The Board recognizes the Veteran was afforded a VA examination in July 2011, which addressed some Gulf War related illness claims, to include related to joint pain. No symptoms similar to irritable bowel syndrome were considered at that time. A review of the Veteran's clinical records reveals he has not been specifically diagnosed to have irritable bowel syndrome. Thus, the Board finds remand is necessary in order to afford the Veteran a current Gulf War related illnesses examination that considers the symptoms the Veteran is reporting with regard to his irritable bowel syndrome claim. The Veteran also has claimed service connection is warranted for joint pain and numbness in his upper extremities and headaches. Symptoms such as these should also be considered at the time of this examination. Service Treatment Records A portion of the Veteran's service treatment records are within the claims file; however, it is unclear whether more records are in existence that could be added to the claims file. The record includes a copy of an August 2010 email indicating the VA Records Management Center (RMC) sent the Veteran's records to the RO on July 21, 2010. The February 2012 rating decision then lists service treatment records from July 1985 to August 1992 as being a part of the evidence reviewed, without any indication that any records are missing. Some service treatment records are in the claims file and they are indicated as received in March 2014, but these records do not include induction or separation examination reports. Military personnel records added to the file in August 2019 do include a copy of the June 1985 induction examination report. A July 2019 deferred rating decision shows the RO indicating that the STRs of record are incomplete. This deferred rating decision suggests additional action was being taken to locate the missing records; however, there is no documentation in the claims file of the efforts taken other than the July 2019 letter to the Veteran asking him to send copies of his service treatment records if he has them. There is no obvious indication of the records being sought after July 2019 or of any formal finding or notice to the Veteran of missing records under 38 C.F.R. § 3.159(e). The Board, therefore, finds the RO has not satisfied its duty to assist the Veteran in this regard and the Veteran's claims, therefore, must be remanded. The Board also notes that during the June 2021 Board hearing, the Veteran's representative suggested there was documentation of an in-service fall during the Veteran's tour in Germany in existence. On remand, the Veteran should be again afforded the opportunity to submit any records in his possession. Post-Service Treatment Records A review of the claims file reveals that the Veteran is claiming that the disabilities on appeal were treated close in time with his separation from active service. The record includes VA treatment records dated from July 2010 to October 2011, and April 2013 to November 2017. A review of the record reveals the RO requested records from the Dayton VA Medical Center (VAMC) dating from January 1, 1993 to December 31, 1994 and a negative response was received in July 2019. The Veteran was appropriately notified in February 2020 that the RO was unable to obtain the Dayton VAMC records from 1993 and 1994. It is unclear to the Board why records from 1994 to 2010 and from 2011 to 2013 were not sought. Particularly, with regard to the records closer in time to the Veteran's service, the Board finds these must be sought as the Veteran has specifically indicated treatment for his claimed disabilities closer in time to his service. Further, the post-service records show the Veteran was on medication for hypertension within the decade following his elevated blood pressure readings, but the records showing the initial prescription for those medications are not in the claims file. Thus, remand is necessary for development of this potentially relevant evidence. The matters are REMANDED for the following action: 1. Take whatever action is necessary to obtain complete service treatment records for the Veteran's active service, as was indicated in the July 2019 deferred rating decision. Should any records be deemed unavailable, take appropriate action to make a formal finding and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to provide a copy of any service treatment records he has in his possession, to include any documentation of an in-service fall in Germany referenced by his representative at the June 2021 Board hearing. 3. Obtain the Veteran's VA treatment records related to his claims on appeal for the period from January 1994 to July 2010, from October 2011 to April 2013, and from November 2017 to the present. If any records are deemed unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 4. Once the record is complete to the extent possible, schedule the Veteran for a VA examination(s) for his claimed hypertension and sleep apnea. The examiner must review the claims file. The examiner is asked to confirm the presence of hypertension and sleep apnea during the pendency of these claims, which have been pending since May 2015. The examiner is also asked to provide an opinion as to whether the Veteran's hypertension and/or sleep apnea are as likely as not proximately due to, or at least as likely as not aggravated by (worsened beyond their natural progression), his service-connected disabilities. The Veteran is service-connected for PTSD and for a left ankle disability. He claims his hypertension and sleep apnea are due to or aggravated by the symptoms associated with his PTSD. Thus, the examiner is asked to summarize those symptoms and assess their impact on his claimed disabilities. The examiner should also consider and comment on the May 2016 private opinion from D. Gardner, FNP-C. With regard to the Veteran's hypertension, the examiner should also determine whether it is at least as likely as not that the hypertension (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should consider the various reports of elevated blood pressure shown in the available service treatment records and estimate the date of the initial onset of hypertension. The examiner should provide a rationale for any opinion expressed. In providing the requested opinion, the examiner should consider the Veteran's description of any in-service injury and symptoms as well as the history of his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 5. Once the record is complete to the extent possible, schedule the Veteran for an appropriate VA examination as to the claimed upper extremity numbness and pain, headaches, and symptoms of irritable bowel syndrome to determine whether such complaints are related to military service. The examiner should conduct all necessary testing to rule out a diagnosis for the claimed signs and symptoms of upper extremity numbness and pain, headaches, and symptoms of irritable bowel syndrome. The VA examiner should characterize the Veteran's claimed disabilities as belonging to one of four disability patterns: (1) undiagnosed illness, (2) a diagnosable, but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic, multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology. With regard to any diagnosed disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current disability is related to service, to include the Veteran's service in the Persian Gulf. A rationale should be provided for any opinion expressed. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). As the Veteran reported flare-ups related to his left ankle at his June 2021 Board hearing, the examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A rationale should be provided for any opinion expressed. (Continued on the next page) 7. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.