Citation Nr: 21072384 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 15-32 125 DATE: December 3, 2021 ORDER New and material evidence having been received, the previously denied claim for service connection for bilateral shin splints is reopened and granted to this extent only. New and material evidence having been received, the previously denied claim for service connection for a bilateral knee disability is reopened and granted to this extent only. REMANDED Entitlement to service connection for bilateral shin splints is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a left eye disability is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In September 2003, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for bilateral shin splints and a bilateral knee disability because there was no evidence of a current disability of either claimed disability. 2. The evidence added to the record since the September 2003 rating decision was not previously submitted to agency decisionmakers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claims, and raise a reasonable possibility of substantiating the claims for service connection for bilateral shin splints and a bilateral knee disability. CONCLUSIONS OF LAW 1. Following the final September 2003 rating decision, new and material evidence has been presented to reopen the claim of service connection for bilateral shin splints. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156. 2. Following the final September 2003 rating decision, new and material evidence has been presented to reopen the claim of service connection for a bilateral knee disability. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to February 1987 and from June 1990 to July 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A December 2018 Board decision, in pertinent part, denied reopening the claims for service connection for bilateral shin splints and a bilateral knee disability and the claims for service connection for a left hand disability, left eye disability and sleep apnea. The Veteran appealed that decision to the United States Court of Appeal for Veterans Claims (Court). The Court vacated and remanded these issues to the Board pursuant to a December 2020 Memorandum Decision. NEW AND MATERIAL EVIDENCE 1. Bilateral Shin Splints and Bilateral Knee Disability A September 2003 rating decision denied service connection for bilateral shin splints and a bilateral knee disability, finding there was no evidence of a current disability of either claimed disability. This decision was not appealed and is therefore final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Following this decision, VA has received new and material evidence, specifically post-service medical evidence of treatment for the knees, and lay statements of a continuity of bilateral knee and bilateral shin splint symptoms since service. Therefore, new and material evidence has been received, and the claims for service connection for bilateral shin splints and a bilateral knee disability is reopened. 38 U.S.C. §§ 1110, 1131, 5108, 7104, 7105; 38 C.F.R. § 3.156. In a September 2013 statement, the Veteran argued that he never received the September 2003 rating decision or the accompanying notice letter. The Court has ruled that there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). Generally, an allegation of non-receipt, by itself, is insufficient to rebut the presumption of regularity. Id. Rather, a claimant bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. Clarke v. Nicholson, 21 Vet. App. 130 (2006). Once the presumption of regularity has been rebutted, the burden shifts to VA to show that regular mailing practices were followed in mailing the document in question in accordance with applicable laws and regulations, or that the claimant actually received the notice. Crain v. Principi, 17 Vet. App. 182, 186 (2003). The Board finds the September 2003 notice letter, including a copy of the September 2003 rating decision, was addressed to the Veteran's address of record at that time, which suggests that VA's mailing practices were proper here. Thereafter, no communication was received from the Veteran until the August 2013 claims for service connection were filed. Thus, the presumption of regularity has attached, and the Veteran must show by clear evidence that the presumption of regularity has been rebutted. It is clear from the cases above that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in AOJ operations. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Although the Veteran raised the issue of whether he received the September 2003 rating decision, he offered no evidence to rebut the presumption of regularity and the mere assertion of non-receipt is insufficient in this respect. Accordingly, the Board finds it is presumable that the September 2003 notice letter and rating decision were mailed properly to the correct address. REASONS FOR REMAND Bilateral Shin Splints, Bilateral Knee Disability, Left Hand Disability, Left Eye Disability and Sleep Apnea In the December 2020 Memorandum Decision, the Court pointed out that the Board's December 2018 decision did not consider the Veteran's arguments regarding whether the service treatment records (STRs) from both periods of active service were associated with the record at the time of the September 2003 rating decision. In addition, the Court found the Board did not provide adequate reasons and bases as to whether VA's duty to assist was fulfilled with respect to obtaining all the STRs from the Veteran's service in the Army Reserves and did not provide adequate reasons and bases as to why VA examinations were not provided for the issues on appeal. Accordingly, a remand for additional development is necessary. The record reflects that most of the STRs from the Veteran's Army Reserve service between his periods of active service, from February 1987 to June 1990, have not been obtained. Therefore, upon remand, an attempt to locate the STRs from the Veteran's Army Reserves service, as well as any missing STRs from his periods of active service, and associate them with the claims file should be made. Following the addition of any relevant service records and post-service treatment records, adequate VA examinations and medical opinions are required to facilitate appellate review in order to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral shin splints, bilateral knee disability, left hand disability, left eye disability and sleep apnea originated during active service, within one year of his active service, or were otherwise caused by or related to active service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the appellant adequately identifies. 2. In an effort to obtain all information regarding the Veteran's service, please contact all possible resources in order to obtain any missing service treatment records (STRs) from the Veteran's periods from active service, and all STRs from his Army Reserves Service, from February 1987 to June 1990, including contacting the National Personnel Records Center (NPRC) and the U.S. Armed Services Center for Unit Records Research (CURR), if necessary. 3. After Steps 1-2 are completed, schedule the Veteran for a VA examination to determine the current nature and etiology of his bilateral shin splints and bilateral knee disability. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file, to include the Veteran's service records. Please review the Veteran's reported history carefully, including: (a). STRs demonstrating treatment and diagnoses of bilateral shin splints continually throughout his active service, including a diagnosis of bilateral shin splints at separation, just nine days prior to the April 2003 VA examination; (b). STRs demonstrating treatment and diagnoses of bilateral knee pain and retropatellar pain syndrome (RPPS) continually throughout his active service, including an April 2003 Report of Medical History noting chronic knee pain since 1986 and a diagnosis of prepatellar bursitis at separation, just nine days prior to the April 2003 VA examination; (c). The Veteran's lay statements of bilateral knee and bilateral shin splint symptoms since his active service and his report of bilateral shin splints and bilateral knee pain just prior to the April 2003 VA examination; (d). Post service medical records, specifically VA medical records, demonstrating treatment for bilateral knee pain. Please NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Please specify the diagnosis of any current bilateral shin splints or bilateral knee disability. (b). Whether it is at least as likely as not (50 percent or greater probability) that any current diagnosis of any current bilateral shin splints or bilateral knee disabilities: (i) had their clinical onset during the Veteran's active service; or, (ii) that such a disorder was caused by any event or incident that occurred during his active service. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 4. After Steps 1-2 are completed, schedule the Veteran for a VA examination to determine the current nature and etiology of his left hand disability. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file, to include the Veteran's service records. Please review the Veteran's reported history carefully, including: STRs demonstrating treatment and diagnoses of a left hand injury during his active service; Please NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Please specify the diagnosis of any current left hand disability, INCLUDING any residuals or scars from the left hand injury in service. (b). Whether it is at least as likely as not (50 percent or greater probability) that any current diagnosis of any current left hand disability, INCLUDING any residuals or scars from the left hand injury in service: (i) had its clinical onset during the Veteran's active service; or, (ii) that such a disorder was caused by any event or incident that occurred during his active service, INCLUDING a scar or other residuals from the left hand injury. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 5. After Steps 1-2 are completed, schedule the Veteran for a VA examination to determine the current nature and etiology of his left eye disability. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file, to include the Veteran's service records. Please review the Veteran's reported history carefully, including: STRs demonstrating treatment and diagnoses of a left eye injury during his active service and the Veteran's lay statements. Please NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Please specify the diagnosis of any current left eye disability, INCLUDING any residuals from the left eye injury in service. (b). Whether it is at least as likely as not (50 percent or greater probability) that any current diagnosis of any current left eye disability, INCLUDING any residuals from the left eye injury in service: (i) had its clinical onset during the Veteran's active service; or, (ii) that such a disorder was caused by any event or incident that occurred during his active service. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 6. After Steps 1-2 are completed, schedule the Veteran for a VA examination to determine the current nature and etiology of his sleep apnea. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file, to include the Veteran's service records. All necessary testing should be conducted. Please review the Veteran's reported history carefully, including the STRs and the Veteran's lay statements. Please NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Please specify the diagnosis of any current sleep apnea disability or related sleep disorder. (b). Whether it is at least as likely as not (50 percent or greater probability) that any current diagnosis of any current sleep apnea: (i) had its clinical onset during the Veteran's active service; or, (ii) that such a disorder was caused by any event or incident that occurred during his active service, including related sleep apnea symptoms reported by the Veteran. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.