Citation Nr: 21071535 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-27 630 DATE: November 30, 2021 ORDER The application to reopen the claim of service connection for bilateral hearing loss is denied. The application to reopen the claim of service connection for a bilateral knee disorder is denied. The application to reopen the claim of service connection for sleep disturbance is granted. A total disability rating due to individual unemployability (TDIU) is denied. REMANDED Service connection for sleep disturbance, recharacterized as sleep apnea. FINDINGS OF FACT 1. The Veteran had active duty from December 1990 to July 1991. 2. In July 2007, the Regional Office (RO) denied service connection for bilateral hearing loss; the Veteran did not appeal. Evidence submitted since the July 2007 rating decision includes additional testing confirming a current diagnosis. 3. The RO denied service connection for a bilateral knee disorder in July 2007 and again in October 2014; the Veteran did not appeal. Evidence submitted since the October 2014 rating decision showed treatment for left and right knee osteoarthritis. 4. In November 1997, the RO denied service connection for sleep disturbance due to an undiagnosed illness; the Veteran did not appeal. The evidence submitted since the November 1997 rating decision included treatment records showing a diagnosis of sleep apnea. 5. The Veteran's service-connected disabilities do not preclude her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The July 2007 rating decision, which denied service connection for bilateral hearing loss, is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the July 2007 rating decision is new but not material; the claim for service connection for bilateral hearing loss is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.385 (2021). 3. The October 2014 rating decision, which denied service connection for a bilateral knee disorder, is final. 38 U.S.C. § 7105 (2012). 4. The evidence submitted since the October 2014 rating decision is new but not material; the claim for service connection for a bilateral knee disorder is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.307, 3.309 (2021). 5. The November 1997 rating decision, which denied service connection for sleep disturbance, is final. 38 U.S.C. § 7105 (2012). 6. The evidence submitted since the November 1997 rating decision is new and material; the claim for service connection for a sleep disturbance, recharacterized as sleep apnea, is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2021) 7. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1110, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Bilateral Hearing Loss Service connection for bilateral hearing loss was originally denied in a November 1997 rating decision. The Veteran did not file a notice of disagreement (NOD) to appeal the decision, nor was any new and material evidence submitted to the claims file in the year following the decision, and as such it became final. The Veteran filed a November 2005 claim to reopen which was denied in a July 2007 rating decision, which denied the claim on the merits for lack of a medical nexus. She did not file a NOD, nor was new and relevant evidence submitted in the following year, and that rating decision became final. In July 2015, the Veteran filed a new claim of service connection for bilateral hearing loss. In December 2015, the RO reopened and denied right ear hearing loss on the merits and denied the application to reopen the claim of service connection for left ear hearing loss. This decision forms the basis of the appeal. Turning to the evidence, since the July 2007 rating decision, both VA and private medical records have been added to the claims file, in addition to lay statements and testimony from a Board hearing. The VA medical records show ongoing treatment for hearing loss, including audiograms confirming a current diagnosis of hearing loss for VA purposes. However, a current diagnosis of hearing loss was already established at the time of the July 2007 rating decision. The VA and private medical records failed to contain an etiological opinion relating bilateral hearing loss to service, to include that preexisting right ear hearing loss was worsened by service. During the June 2021 Board hearing, the Veteran described auditory trauma she experienced during active duty; however, the in-service acoustic trauma had already been documented and established at the time of the July 2007 rating decision. Collectively, no evidence submitted to the claims file following the prior final denial substantiated or even suggested a medical nexus element of either left or right ear hearing loss. As this is the final unestablished element of the claim, evidence associated with the claims file since July 2007 is new but is not material. Therefore, the application to reopen the claim of service connection for bilateral hearing loss is denied. Bilateral Knee Disorder Service connection for a bilateral knee disorders were originally denied in a November 1997 rating decision. The Veteran did not file a NOD to appeal the decision, nor was any new and material evidence submitted to the claims file in the year following the decision, and as such it became final. In November 2005, she filed a claim to reopen which was denied on the merits in a July 2007 rating decision. She did not file a NOD, nor was new and relevant evidence submitted in the following year, and that rating decision became final. In February 2014, the Veteran filed another claim. The RO reopened the claim and denied it in an October 2014 rating decision. In the year following the decision, she filed a July 2015 claim, which the RO reopened in a December 2015 rating decision but the claim. This form the basis of the current appeal. Evidence submitted to the file in the year following the October 2014 rating decision includes several years of new VA medical records. Prior to the July 2007 rating decision, evidence associated with the claims file included a current diagnosis of a bilateral knee disorder, to include specifically October 2005 private medical records that showed osteoarthritis in both her left and right knees. As such, a chronic disease was shown as of the July 2007 rating decision. Similarly, the Veteran claimed that her knee pain resulted from qualifying service in the Southwest Asia theater of operations. Her service had been established by the record as of the time of the July 2007 rating decision. Similarly, at that time the RO did not find continuity of symptomology for a bilateral knees disorder. Thus, at the time of the July 2007 denial, the only elements that were not fulfilled were that of a medical nexus, or a showing that a chronic disease was diagnosed in service, manifested to a compensable degree in the year following service, or if she had continuous symptoms since service. The evidence submitted since July 2007 rating decision includes both private and VA medical records include ongoing treatment for the Veteran's knee disorders. The treatment included both surgeries and injections. However, no private or VA medical opinions were submitted, nor did the treatment records contain any etiological opinions or conclusions regarding her knee disorders. Similarly, the medical records did not show that a chronic disease was diagnosed during service or that one manifested to a compensable degree in the year following separation. As such, at the time of the October 2014 rating decision, the elements that had not been shown remained both a medical nexus and whether a chronic disease manifested to a compensable degree in the year following service, was diagnosed during service or if she had continuous symptoms since service. The claim was denied due to evidence not substantiating any of these elements. Next, the VA medical records associated with the claims file by October 2015, within a year of the October 2014 rating decision, continued to show treatment for each knee. Again, the evidence did not contain any medical opinions relating either knee disorder to service. The VA medical records did not include evidence of a chronic disease that was diagnosed during service or manifested in the year following separation from service. While the records show frequent treatment for each knee from January 1999 to October 2015, the dates of the VA medical records uploaded, they do not show symptomatic knees starting from separation until her eventual diagnosis with a bilateral chronic knee disorder. The claims file also includes two July 2015 lay statements from family members, which detail the current state of the Veteran's knees and their change since service, but do not have competent evidence regarding a medical nexus nor specific testimony regarding consistent symptoms starting at separation until her diagnosis. Thus, in the year following the October 2014 rating decision, new evidence was submitted, but as it did not relate to an unestablished element of the claim, it was not material. Therefore, the October 2014 rating decision is final, and is the prior final decision as related to the claim for a bilateral knee disorder. Since the October 2014 rating decision, the evidence submitted includes VA medical records reviewed above, as well additional VA medical records through 2018. These show continued treatment for the knees but no etiological opinion or evidence of chronicity beginning in or within a year of service. The same is shown by private medical records associated with the claims file during this period. The Veteran also testified before the Board in June 2021 and described her current knee disorders and surgery but did not include any competent evidence regarding a medical nexus. Thus, since the prior final October 2014 rating decision, no competent evidence has been submitted regarding a medical nexus for either knee. Rather, the evidence during this period does not include a diagnosis of a chronic disease in service, evidence of symptoms starting directly after service until the diagnosis, or the manifestation of a chronic disease to a compensable level in the year following service. As such, while there is new evidence during this period, as it does not relate to an unestablished element of the claim, it is not material, and the application to reopen the claim of service connection for a bilateral knee disorder is denied. Sleep Disturbance Service connection for a sleep disturbance due to an undiagnosed illness was originally denied in a November 1997 rating decision because there was no diagnosis, and the condition was determined to have neither occurred nor have been caused by service. The Veteran did not appeal the decision, nor was any new and material evidence submitted to the claims file in the year following the decision, and as such it became final. In July 2015, the Veteran filed a new claim for sleep disturbances. In both the resulting December 2015 rating decision and April 2018 statement of the case (SOC), the RO denied the application to reopen the claim stating that new and material evidence had not been received. However, since the prior November 1997 denial, February 2017 and March 2017 VA treatment records show a preliminary and then confirmed diagnosis of sleep apnea and the prescription of a CPAP. Given that there was no current disability at the time of the prior final denial, this evidence is both new and material, and as such, the application to reopen the claim for service connection for sleep disturbances, is granted. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service connected for an unspecified trauma and stressor related disorder at 50 percent and fibromyalgia at 20 percent both from February 21, 2014, and for hiatal hernia at a noncompensable level from September 13, 1996 and a 10 percent rating from June 22, 2015. She thus has a noncompensable total rating prior to February 21, 2014, and 60 percent thereafter. The disabilities cannot be combined via the exceptions in 38 C.F.R. § 4.16(a) such that they may be considered one disability. Therefore, she does not meet the schedular threshold at any point during the appeal period. However, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board lacks the power to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The central inquiry is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as her or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As to employment, the Veteran's initial application stated she stopped working at a bank in May 2015 and had missed five months for injury; however, November 2015 information from her employer showed that she was still working, and that she had missed 12 weeks the prior year due to disability. During the June 2021 Board hearing, she testified that she took early retirement in 2018, although a May 2018 VA examination report shows she still reported working full-time. Turning to the service-connected disabilities, an October 2014 VA examiner found that the Veteran's psychiatric symptoms caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner found that the Veteran's mental health symptoms did not preclude the ability to maintain focus for a two-hour period, to understand and remember instructions or learn new tasks, or preclude the ability to interact socially. The examiner concluded that the Veteran would work best in a social environment with casual social interactions, and that mental health symptoms alone would not preclude gainful employment. A March 2018 VA examiner found that the Veteran's service-connected psychiatric disorders caused occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. As to fibromyalgia, a May 2018 VA examiner diagnosed the Veteran with fibromyalgia, which caused symptoms of pain, stiffness, fatigue, headache, and irritable bowel syndrome. The examiner found it caused functional impairment, as she reported constant pain and stiffness in her joints that slowed her, and that she had missed 1-2 days of work due to fibromyalgia. As to a hiatal hernia, a November 2015 VA examiner found that it caused functional impact as the Veteran would get acid reflux with coughing spells at work, but that it had not caused her to miss work. A March 2016 VA examiner found it caused functional impact in that it caused decreased focus, diet modification, and avoidance of exacerbating positions. In July 2015 and May 2018 lay statements, as well as the July 2015 application for TDIU, the contentions center in large part on the functional impairment caused by knee pain. The Veteran has had multiple surgeries and frequent treatment for both the knees but these are not service connected disabilities. As only service-connected disabilities may be analyzed when evaluating TDIU, the knee disabilities and any functional impairment they cause may not be considered. Thus, the evidence does not show frequent missed time or hospitalization during the appeal period due to her service-connected disabilities. Additionally, there is no evidence that shows she was terminated or unable to obtain substantially gainful employment during the appeal period due to her service-connected disabilities. At the June 2021 Board hearing, the Veteran stated she took early retirement in 2018 due in part because of her nonservice-connected knee disabilities. The inquiry in a TDIU claim is not whether the Veteran was gainfully employed during the appeal period, but instead whether she was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. As noted above, the functional impact of her service-connected disabilities does not warrant a TDIU or referral for extraschedular consideration. Further, while the issue of service connection for sleep apnea is remanded, the Veteran has not stated nor has the evidence shown that her claimed inability to obtain and follow substantially gainful employment is due in any part to sleep apnea. As such, neither remand for additional development nor referral to the Director for extraschedular consideration is warranted, and the appeal for a TDIU is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Additional development is necessary prior to deciding the issue of service connection for sleep apnea. The record shows a current diagnosis of sleep apnea as well as complaints of sleep disturbances during active duty. As such, a medical opinion is needed to determine the etiology of the Veteran's current sleep apnea. The matter is REMANDED for the following actions: 1. Identify and obtain any outstanding VA treatment records and associate them with the claims file. 2. Refer the claims file to a clinician to provide the following opinion: Is the Veteran's current diagnosis of sleep apnea at least as likely as not (50 percent or greater probability) due to active service? The examiner should specifically address complaints of difficulty sleeping noted in service. All opinions must be accompanied by a well-reasoned rationale. 3. If the clinician determines that an examination is necessary in order to provide the requested opinion, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, 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.