Citation Nr: 21066787 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-25 032 DATE: November 2, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disorder is reopened. New and material evidence having been received, the claim of entitlement to service connection for a lung disorder is reopened. Service connection for a low back disorder, diagnosed as degenerative disc disease, is granted. Entitlement to service connection for a respiratory disorder is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to a rating in excess of 10 percent for left patellofemoral syndrome with degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for right patellofemoral syndrome with degenerative joint disease is remanded. FINDINGS OF FACT 1. Service connection for a low back disorder and a lung disorder was denied in a December 1998 rating decision on the basis that there was no current disability. 2. The Veteran did not file a notice of disagreement for the December 1998 rating decision, nor submit new evidence within one year, and that decision became final. 3. Evidence received since the December 1998 rating decision relates to unestablished facts necessary to substantiate the claims of service connection for a lumbosacral strain and service connection for a bronchial disorder. 4. Resolving reasonable doubt in his favor, the Veteran has a low back disorder related to service. 5. The Veteran's respiratory disorder is not related to any injury, disease, or event incurred in service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the Veteran's claim for service connection for a low back disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received, and the Veteran's claim for service connection for a lung disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a low back disorder, diagnosed as degenerative disc disease, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310. 4. The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1978 to December 1998. This case comes before the Board of Veterans' Appeals (Board) from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St, Petersburg, Florida. The Board notes that the issue on appeal was characterized as entitlement to service connection for depression. However, in light of the evidence of record, the Board has recharacterized the issue more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). In February 2020, the RO continued the Veteran's 10 percent evaluation for his left patellofemoral syndrome with degenerative joint disease and right patellofemoral syndrome with degenerative joint disease. The Veteran subsequently filed a Decision Review Request, VA Form 10182, in February 2021 and selected the Evidence Submission lane. The Appeals Modernization Act (AMA) appeal, however, was improper, as the Veteran may not pursue an appeal of the same claim in both Legacy and AMA at the same time. The Board will therefore proceed to address these issues under the Legacy system in the current Board decision. New and Material Evidence A claim which has been finally denied 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 which 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 decision makers. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lung disorder Service connection for a low back disorder and a lung disorder was initially denied in a December 1998 rating decision. Evidence considered in this decision included the Veteran's service treatment records and VA treatment records. The RO noted that the low back disorder was not considered to have been chronic in service and resolved with no permanent residuals. With regards to the lung disorder, the evidence failed to show a disability for which compensation may be established. The pertinent new evidence added to the record since the December 1998 denial includes VA treatment records and an October 2012 VA examination showing diagnoses of degenerative disc and facet changes and chronic obstructive pulmonary disease (COPD). The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of current disabilities; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claim is appropriate. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease that is contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker, 708 F.3d at 1336. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a low back disorder Service treatment records reflect that the Veteran complained of low back pain several times in 1979. In May 1979, the Veteran complained of lower back pain after lifting some heavy boxes the previous day. An August 1979 clinical record reflects that the Veteran complained of back pain for six months and the original injury was "probably due to lifting." The Veteran received a military retirement physical examination in November 1998 and the examiner noted low back pain that started in 1979. Descriptions of the pain in the Veteran's service treatment record described it as low back pain but x-rays taken in 1979 were described as normal. Based on the results of the examination, the examiner diagnosed the Veteran with chronic low back pain. He did not, however, offer an opinion with regards to its etiology. The Veteran received a VA examination in October 2012 and the examiner noted a diagnosis of degenerative disc and facet changes. The Veteran indicated that his back condition "started a long time ago." He injured it in school and when he was ordered to his first ship, the medical personnel said they could operate on it but it would not be cost effective; he could either live with it or take a military discharge, and he had been living with it since then. Based on the results of the examination, the examiner concluded that the condition was less likely than not caused by service. Per review of medical literature, the cause of facet disease was deterioration of the cartilage of the joints, and the primary risk factor was aging. Other risk factors were heredity, gender, diet, obesity, age, and physical activity. The Veteran submitted a statement in December 2019 that the medical evidence supports his contentions of a "decade of hazardous flight deck duty" during service. The Board finds the evidence to be at least in equipoise in this case, as the October 2012 VA examiner offered a negative nexus opinion but admitted that physical activity was a risk factor for facet disease. Moreover, degenerative disc disease is a chronic disease of the nervous system and therefore the Veteran's credible statements of continuity of symptoms with respect to his low back symptoms may service as a substitute for a medical link to service. There is also no clear alternative explanation for the Veteran's disorder. Consequently, the Board will give the Veteran the benefit of the doubt, and finds that service connection for a low back disorder, diagnosed as degenerative disc disease, is warranted. Entitlement to service connection for a lung disorder At the November 1998 military retirement physical examination, the examiner noted reduced lung capacity which had been present since the 1980s. The Veteran admitted to a 25 pound weight-gain and described himself as a non-smoker; he quite a week earlier but had a history of 1.5 to 2 packs per day for 20 years. He had been followed in the asbestos medical surveillance program since approximately March 1985 where he had normal pulmonary function tests that year and in February 1986. The Veteran was subsequently instructed to discontinue smoking. Based on the results of the examination, the examiner diagnosed poor pulmonary status probably secondary to smoking. A February 2008 H&P Outpatient Visit note reflects that the Veteran reported still using tobacco. The Veteran received a VA examination in October 2012 and the examiner noted a diagnosis of COPD. The Veteran stated "[t]hey held me over for some lung stuff in 1999 and that was it, didn't treat me, just processed out." Based on the results of the examination, the examiner concluded that the condition was less likely than not caused by service. A January 1999 pulmonary functioning test was normal, and the treatment records were silent for a respiratory condition until 2011. Rather, the examiner concluded that the current respiratory condition was due to smoking and obesity. On his July 2015 notice of disagreement, the Veteran stated that there are in-service records of 20 years of exposure to hazardous toxic respiratory aggravating agents and 20 years of "flight line and flight deck exposure to aircraft fuels and exhaust." Such evidence clearly established plausible relationships to the current medical diagnosis of his condition. To support his contention, the Veteran submitted several online articles with regard to inhalation disorders. The Board finds the VA examination results to be the most probative evidence of record. The examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's respiratory condition and its lack of connection to service. Although the examiner confirmed that the Veteran has a current bronchial condition, he provided a thorough opinion explaining why it was less likely than not that it was the result of his military service. Furthermore, the military retirement examiner had the same opinion in November 1998, linking the Veteran's condition to smoking. Despite indicating that he had stopped smoking in 1998, the evidence reflects that the Veteran continued the practice after separating from service. In light of the competent medical evidence the Board finds that service connection for a bronchial condition is not warranted. The Board notes the Veteran's contentions that his in-service exposure to hazardous agents and jet fuel led to his current respiratory condition. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his bronchial condition to his in-service exposure to hazardous respiratory agents and jet fuel and exhaust. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide statements or testimony regarding the etiology of his respiratory disorder. See Jandreau, 492 F.3d at 1377, n.4. Because these types of disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is considered competent to make. Therefore, the unsubstantiated statements of the Veteran regarding the claimed etiology of his respiratory disorder are found to be inadequate as competent medical nexus evidence. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea. As the Veteran's medical records establish a diagnosis of sleep apnea, and there is an indication, through assertions of the Veteran, that the disability may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of this disability. 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include as secondary to a service-connected disability The Veteran received a VA examination in October 2012 and the examiner noted a diagnosis of a mood disorder. The examiner opined that the depressive disorder was less likely as not caused by his service-connected patellofemoral syndrome with degenerative joint disease, as the Veteran had a history of sleep apnea and associated depressive symptoms and also had maladaptive coping skills. However, the examiner's opinions were incomplete, as the examiner provided a negative nexus opinion with regards to causation but did not offer an opinion as to aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Furthermore, the Board notes that that the Veteran submitted several articles highlighting a correlation between depression and pain. In light of a grant of service-connection for cervical spondylosis and the instant grant of service-connection for a low back disability, the Board finds that the new VA examiner must offer an opinion with regards to all of the Veteran's physical service-connected disabilities. 3. Entitlement to service connection for a left ankle disorder The Veteran received a VA examination in October 2010 and the examiner noted a diagnosis of bilateral achilles tendonitis, left ankle hypertrophic os trigonum, and left ankle degenerative joint disease. The examiner opined that the conditions were less likely than not related to service, as service treatment records were silent for a left ankle condition. Furthermore, having an os trigonum was of no consequence, but some people could get this small bone caught in the ankle and have abnormal motion. Finally, there was no evidence of a nexus between the os trigonum and service. The Board finds this opinion inadequate, as the examiner did not offer an opinion with regards to the etiology of the diagnosed left ankle degenerative joint disease. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision."). 4. Entitlement to a rating in excess of 10 percent for left patellofemoral syndrome with degenerative joint disease is remanded. 5. Entitlement to a rating in excess of 10 percent for right patellofemoral syndrome with degenerative joint disease is remanded. The Veteran received VA examinations of his knees in March 2012 and December 2019. The Board has reviewed those examination report and notes that they are not adequate, as it does not appear that any passive, weight-bearing and nonweight-bearing range of motion testing, was conducted at that time. While the December 2019 examiner noted objective evidence of pain in these ranges of motion, she did not offer any range of motion estimates. Consequently, the Board finds that it must remand the claim in order for a retroactive opinion with regards to whether the results of the March 2012 and December 2019 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. Id. at 10. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's sleep apnea had its onset in service or is otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder, other than PTSD. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's acquired psychiatric disorder, other than PTSD had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's acquired psychiatric disorder, other than PTSD was caused or aggravated by his service-connected knee disability or service-connected back disability. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed left ankle disorder. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's left ankle disorder had its onset in service or is otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 4. Schedule the Veteran for a VA examination to assess the current severity of the Veteran's left and right patellofemoral syndrome with degenerative joint disease. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must also be performed. The left and right knees must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify extent of her functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. Afterwards, the examiner must provide this additional requested opinion: (a.) Determine whether the Veteran's range of motion results from the March 2012 and December 2019 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described and estimated in degrees, and if the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.