Citation Nr: 21071117 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 15-35 449 DATE: November 29, 2021 ORDER New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for a bilateral hip disorder is granted and the claim is reopened. New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for a bilateral ankle disorder is granted and the claim is reopened. New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected posttraumatic-stress disorder (PTSD), is granted and the claim is reopened. REMANDED Entitlement to an initial disability rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an initial disability rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a disability rating in excess of 10 percent for chronic bronchitis is remanded. Entitlement to a disability rating in excess of 10 percent for sinusitis is remanded. Entitlement to a disability rating in excess of 10 percent for bilateral plantar fasciitis is remanded. Entitlement to an initial compensable disability rating for micturition syncope is remanded. Entitlement to service connection for a bilateral hip disorder is remanded. Entitlement to service connection for hypermobility syndrome is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for radiculopathy of the bilateral upper extremities is remanded. Entitlement to service connection for radiculopathy of the bilateral lower extremities is remanded. Entitlement to service connection for a bilateral ankle disorder is remanded. Entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected posttraumatic-stress disorder (PTSD) is remanded. Entitlement to TDIU is remanded. FINDINGS OF FACT 1. In a July 2012 rating decision, the Veteran's claim of entitlement to service connection for a right hip disorder was denied on the ground that he did not have a current diagnosis of a right hip disorder. 2. In a July 2006 rating decision, the Veteran's claim of entitlement to service connection for a left hip disorder was denied on the ground that it was not incurred in or caused by his active duty service. 3. In a July 2006 rating decision, the Veteran's claim of entitlement to service connection for a bilateral ankle disorder was denied on the ground that it was not incurred in or caused by his active duty service. 4. In a July 2012 rating decision, the Veteran's claim of entitlement to service connection for sleep apnea was denied on the ground that his sleep apnea was not incurred in or caused by his active duty service. 5. The evidence added to the record since the July 2006 and July 2012 rating decisions relates to unestablished facts that are necessary to substantiate the claims of service connection for a bilateral hip disorder, a bilateral ankle disorder, and sleep apnea. CONCLUSIONS OF LAW 1. The July 2006 rating decision that denied the Veteran's claims of entitlement to service connection for a left hip disorder and a bilateral ankle disorder and the July 2012 rating decision that denied his claims of entitlement to service connection for a right hip disorder and sleep apnea are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Because evidence received after the June July 2006 and July 2012 rating decisions is new and material, the requirements to reopen the Veteran's claims of entitlement to service connection for a bilateral hip disorder, a bilateral ankle disorder, and sleep apnea have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to August 1975 and September 1977 to September 1994. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a bilateral hip disorder 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a bilateral ankle disorder 3. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected PTSD The Veteran contends that his claims of entitlement to service connection for a bilateral hip disorder, a bilateral ankle disorder, and sleep apnea should be reopened because the record now contains new evidence, which shows that he has current diagnoses of these disorder, and that they were caused by his active duty service. In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulations, "new" evidence is defined as evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Moreover, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's claims of entitlement to service connection for a left hip disorder and a bilateral ankle disorder were denied by a July 2006 rating decision on the ground that the evidence failed to show that they were incurred in or caused by his active duty service. His claim of entitlement to service connection for a right hip disorder was denied in a July 2012 rating decision on the ground that the evidence failed to show a current diagnosis of a right hip disorder. His claim of entitlement to service connection for sleep apnea was denied in the July 2012 rating decision on the ground that it was not incurred in or caused by his active duty service. The Veteran did not appeal the denial of these claims in the June 2006 and July 2012 rating decisions, nor did he submit any new and material evidence within a year of receiving them. Thus, the July 2006 and July 2012 rating decisions represent the last final denials of his claims seeking service connection for a bilateral hip disorder, a bilateral ankle disorder, and sleep apnea. See Buie v. Shinseki, 24 Vet. App. 242, 252 (2011). The Board notes that although he filed a new claim seeking service connection for a bilateral hip disorder and sleep apnea in March 2013, he did not file a notice of disagreement on the prescribed form, and therefore a notice of disagreement will not be implied. Regardless, as set forth below, the Board finds that new and material evidence has been submitted to reopen his claims of service connection for a right hip disorder and sleep apnea, and there is no prejudice to the Veteran. After a review of the evidence submitted since the July 2006 and July 2012 rating decisions became final, the Board determines that the Veteran's claims of entitlement to service connection for a bilateral hip disorder, a bilateral ankle disorder, and sleep apnea should be reopened. The record now includes new evidence, including his testimony at the July 2021 Board hearing, private treatment records, and VA treatment records, which raise the possibility that he has a current bilateral hip disorder, a current bilateral ankle disorder, and sleep apnea, and that those disorders are etiologically related to his active duty service. Not only is this evidence "new" because it was not of record prior to the last final denial of the claims, it is also "material" because it relates to unestablished facts necessary to support the claims. Therefore, his claims seeking service connection for a bilateral hip disorder, a bilateral ankle disorder, and sleep apnea should be reopened. Shade, 24 Vet. App. at 118-21; see also 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for a left knee disability is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for a right knee disability is remanded. 3. Entitlement to a disability rating in excess of 10% for chronic bronchitis is remanded. 4. Entitlement to a disability rating in excess of 10 percent for sinusitis is remanded. 5. Entitlement to a disability rating in excess of 10 percent for bilateral plantar fasciitis is remanded. 6. Entitlement to an initial compensable disability rating for micturition syncope is remanded. 7. Entitlement to service connection for a bilateral hip disorder is remanded. 8. Entitlement to service connection for hypermobility syndrome is remanded. 9. Entitlement to service connection for a back disorder is remanded. 10. Entitlement to service connection for a neck disorder is remanded. 11. Entitlement to service connection for radiculopathy of the bilateral upper extremities is remanded. 12. Entitlement to service connection for radiculopathy of the bilateral lower extremities is remanded. 13. Entitlement to service connection for a bilateral ankle disorder is remanded. 14. Entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected PTSD is remanded. 15. Entitlement to TDIU is remanded. The Board concludes that the Veteran's claims seeking an initial disability rating in excess of 10 percent for a left knee disability, an initial disability rating in excess of 10 percent for a right knee disability, a disability rating in excess of 10 percent for chronic bronchitis, a disability rating in excess of 10 percent for sinusitis, a disability rating in excess of 10 percent for bilateral plantar fasciitis, an initial compensable disability rating for micturition syncope, service connection for a bilateral hip disorder, hypermobility syndrome, a back disorder, a neck disorder, radiculopathy of the bilateral upper extremities, radiculopathy of the bilateral lower extremities, a bilateral ankle disorder, sleep apnea, and TDIU must be remanded. First, the record indicates that the Veteran is in receipt of Social Security Administration (SSA) benefits, and notes that the notice of award is of record. However, there is no indication in the record that the RO ever sought to obtain all of the Veteran's SSA records, including treatment records. Therefore, these records, if such records exist, must be acquired. 38 U.S.C.§ 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); but see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Next, the Board finds that VA examinations are warranted for the Veteran's claims seeking service connection for a bilateral hip disorder, hypermobility syndrome, radiculopathy of the bilateral upper extremities, radiculopathy of the bilateral lower extremities, a back disorder, a neck disorder, and a bilateral ankle disorder. In this case, the following service treatment records reflect that he reported symptoms of, sought treatment for, and/or was diagnosed with these disorders: November 1972, September 1974, February 1990, and October 1993 service treatment records reflect that he reported symptoms of and sought treatment for a bilateral hip disorder; October 1993, December 1993, and February 1994 service treatment records reflect that he reported symptoms of and was diagnosed with hypermobility syndrome; February 1978 nad November 1988 service treatment records reflect that he reported symptoms of radiculopathy of the bilateral upper extremities; February 1978 and August 1982 service treatment records reflect that he reported symptoms of radiculopathy of the bilateral lower extremities; June 1973, May 1975, August 1986, and October 1988 service treatment records reflect that he reported symptoms or and sought treatment for a back disorder; a February 1983 service treatment records reflect that he reported symptoms of and sought treatment for a neck disorder; and December 1973, March 1983, March 1987, September 1991, and October 1991 service treatment records reflect that he sought treatment for a bilateral ankle disorder. These treatment records, in conjunction with the Veteran's competent and credible testimony at the July 2021 Board hearing, confirm that a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also concludes that new VA examinations are warranted for the Veteran's service-connected left knee disability, right knee disability, chronic bronchitis, sinusitis, bilateral plantar fasciitis, and micturition syncope. In this case, private treatment records, including December 2016, April 2019, February 2020, August 2020, in conjunction with his competent and credible testimony at the July 2021 Board hearing, suggest that these disabilities may have worsened since his most recent VA examinations. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Finally, the Board notes that in addition to the lack of any indication that the RO sought to obtain the Veteran's SSA records, TDIU must be remanded as inextricably intertwined with the Veteran's claims seeking service connection and increased ratings. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any and all treatment records from any VA facility from which the Veteran has received treatment since October 2016. If the Veteran has received additional provide treatment, he should be afforded an appropriate opportunity to submit the records of such treatment. 2. Obtain the Veteran's disability claim records from the SSA, including medical evidence used to determine disability eligibility, and ensure they are added to his claims file. Document all requests for his disability claims record and all responses, including any response that no disability claims records exist, in the claims file. 3. Schedule the Veteran for a VA examination by an appropriate clinician, or clinicians, to determine whether he currently has a bilateral hip disorder, hypermobility syndrome, radiculopathy of the bilateral upper extremities, radiculopathy of the bilateral lower extremities, a back disorder, a neck disorder, and a bilateral ankle disorder, and the nature, extent, onset, and etiology of these disorders. The claims file should be provided to the examiner(s) for review. All indicated studies deemed necessary by the examiner(s) should be performed, and all findings of those tests should be reported in detail. The examiner(s) should provide opinions as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed bilateral hip disorder, hypermobility syndrome, radiculopathy of the bilateral upper extremities, radiculopathy of the bilateral lower extremities, back disorder, neck disorder, sleep apnea and bilateral ankle disorder are etiologically related to the Veteran's period of active duty service and/or a service-connected disability. It would provide great assistance to the Board if the examiner(s) addressed the Veteran's lay statements, including his testimony at the July 2021 Board hearing, and his service treatment records, which reflect that the Veteran sought treatment for these disorders during his active duty service. These service treatment records include: November 1972, September 1974, February 1990, and October 1993 service treatment records reflect that he reported symptoms of and sought treatment for a bilateral hip disorder; October 1993, December 1993, and February 1994 service treatment records reflect that he reported symptoms of and was diagnosed with hypermobility syndrome; February 1978 nad November 1988 service treatment records reflect that he reported symptoms of radiculopathy of the bilateral upper extremities; February 1978 and August 1982 service treatment records reflect that he reported symptoms of radiculopathy of the bilateral lower extremities; June 1973, May 1975, August 1986, and October 1988 service treatment records reflect that he reported symptoms or and sought treatment for a back disorder; a February 1983 service treatment records reflect that he reported symptoms of and sought treatment for a neck disorder; and December 1973, March 1983, March 1987, September 1991, and October 1991 service treatment records reflect that he sought treatment for a bilateral ankle disorder. If the examiner(s) cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Schedule the Veteran for an examination by an appropriate clinician(s) to determine the current extent and severity of his left knee disability, right knee disability, chronic bronchitis, sinusitis, bilateral plantar fasciitis, and micturition syncope. The claims folder should be made available to and reviewed by the examiner(s). All tests deemed necessary should be conducted and the results reported in detail. If the examiner(s) 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. 5. The RO should undertake any other development deemed necessary in order to adjudicate the Veteran's entitlement to TDIU, including obtaining any VA examinations or opinions. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel