Citation Nr: 21074474 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-29 763 DATE: December 15, 2021 ORDER The previously denied claim of entitlement to service connection for a right shoulder disability is reopened and denied. The previously denied claim of entitlement to service connection for a left shoulder disability is reopened; to this limited extent, the appeal of that issue is granted. The previously denied claim of entitlement to service connection for a neck disability is reopened and denied. The previously denied claim of entitlement to service connection for sleep apnea is reopened; to this limited extent, the appeal of that issue is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. Service connection was previously denied for disabilities of both shoulders and the neck by rating decisions promulgated in July 2001 and March 2007; the Veteran was informed of those decisions, including his right to appeal, and he did not appeal. 2. Service connection was previously denied for sleep apnea by rating decisions promulgated in December 2013 and November 2014; the Veteran was informed of those decisions, including his right to appeal, and he did not appeal. 3. New evidence received since the time of the most recent prior denials, when considered with the evidence previously of record, relates to unestablished facts necessary to substantiate the Veteran's claims for service connection for disabilities of the shoulders, neck, and sleep apnea, and raises a reasonable possibility of substantiating the claims. 4. The preponderance of the evidence is against a finding that the Veteran has a current right shoulder disability that was incurred in or is otherwise the result of his active service. 5. The preponderance of the evidence is against a finding that the Veteran has a current neck disability that was incurred in or is otherwise the result of his active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the previously denied claim for service connection for a right shoulder disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has been received to reopen the previously denied claim for service connection for a left shoulder disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has been received to reopen the previously denied claim for service connection for a neck disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. New and material evidence has been received to reopen the previously denied claim for service connection for sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for an award of service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for an award of service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1991 to March 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In addition to the issues listed above, the Board notes that the Veteran also initiated an appeal with respect to the RO's May 2016 denial of service connection for disabilities of both ankles and pedal hypothermia of both lower extremities. Those issues were addressed in a March 2018 statement of the case (SOC). However, in his May 2018 substantive appeal (VA Form 9), the Veteran indicated that he only wanted to continue his appeal as to the shoulder, neck, and sleep apnea issues. In the May 2016 rating decision, the RO found that new and material evidence had been received to reopen the Veteran's shoulder, neck, and sleep apnea claims. However, the Board is required to consider that question independently. See 38 U.S.C. § 7104(b); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In April 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. As noted, the agency of original jurisdiction (AOJ) furnished the Veteran a SOC relative to the matters herein decided in March 2018. Although additional VA-generated evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the issues that are currently being denied. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1305(c). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding arthritisto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). All of the claims currently on appeal have been the subject of prior decisions. Specifically, service connection was previously denied for disabilities of both shoulders and the neck by rating decisions promulgated in July 2001 and March 2007. In addition, service connection was denied for sleep apnea by rating decisions promulgated in December 2013 and November 2014. The Veteran was informed of those decisions, including his right to appeal, and he did not appeal. The Board also notes that no new and material evidence was actually or constructively received during the one-year appeal periods applicable to the prior decisions. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In other words, any evidence actually or constructively received within the appeal periods did not relate to an unestablished fact necessary to substantiate any of the claims. 38 C.F.R. § 3.156(a); Lang v. Wilkie, 971 F.3d 1438 (2020). In his May 2018 substantive appeal, the Veteran advanced argument to the effect that the denials of his claims were the product of clear and unmistakable error (CUE). Under the law, a final decision "is subject to revision on the ground of clear and unmistakable error [CUE]." 38 U.S.C. § 5109A. Under 38 C.F.R. § 3.105(a), "[p]revious determinations which are final and binding . . . will be accepted as correct in the absence of [CUE]." A decision reversing a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). However, simply to claim CUE on the basis that a previous adjudicator improperly weighed or evaluated the evidence can never rise to the stringent definition of CUE; nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error was and also provide "persuasive reasons" as to why the result would have been manifestly different but for the alleged error. Here, it is not entirely clear that the Veteran is challenging the prior final denials on the basis of CUE, as he has not made any specific reference to errors that were made in specific prior rating decisions. Rather, he appears to be using the term "CUE" as a way of expressing his dissatisfaction with the more recent determinations that are currently on review before the Board. In any event, the AOJ has not considered any CUE claims in the first instance. As such, the Board has no present jurisdiction to consider them. If the Veteran wishes to pursue a claim of CUE in any of the prior ratings decisions, he should make that clear to the AOJ so that the matter can be properly addressed. The prior denials of service connection are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. Accordingly, the claims may be considered on the merits only if new and material evidence has been received since the time of the prior adjudications. See 38 U.S.C. § 5108; Jackson, supra. 1. Whether new and material evidence has been received to reopen the previously denied claim for service connection for a right shoulder disability 2. Whether new and material evidence has been received to the previously denied claim for service connection for left shoulder disability 3. Whether new and material evidence has been received to reopen the previously denied claim for service connection for a neck disability Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing 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 of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that, when determining whether evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist in obtaining a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The evidence added to the record since the most recent prior denials of service connection for disabilities of the shoulders and neck includes statements and hearing testimony from the Veteran which provides additional details regarding these claims which were not previously advanced. For example, at an April 2016 VA examination, the Veteran reported the gradual onset of bilateral shoulder and neck pain over the course of his active duty which he attributed to repetitive overuse injuries. Similarly, at the April 2021 Board hearing he indicated that he developed shoulder and neck pain due to in-service activities such as heavy lifting. In pertinent part, he noted doing pushups; picking things up in the motor pool like batteries; picking up tents, poles, steel pallets, and wooden pallets as part of his regular duties; and lifting weights to stay in shape. See Transcript pp. 4, 9. He has also indicated that he has had recurrent pain in these joints since service. Presuming the credibility of the Veteran's statements and hearing testimony, the Board finds the evidence added to the record since the most recent prior denials of service connection for disabilities of the shoulders and neck relates to unestablished facts necessary to substantiate these claims and raises a reasonable possibility of substantiating the claims. As new and material evidence has been received, the claims are reopened. Adjudication of these claims does not end with the determination that new and material evidence has been received. The Board must now address the merits of the underlying service connection claims for the right shoulder and neck. In the decision on those issues that follows, the presumption that the evidence submitted to reopen is credible, without regard to the other evidence of record, no longer applies. The underlying claim for service connection for the left shoulder is addressed in the REMAND, below. 4. Whether new and material evidence has been received to reopen the previously denied claim for service connection for sleep apnea The evidence added to the record since the last prior denial of service connection for sleep apnea includes statements from the Veteran in which he has contended that his sleep apnea is secondary to his service-connected acquired psychiatric disorder, as well as copies of VA decisions involving other claimants in which service connection was established for sleep apnea on such a basis. (Although he has referred to his service-connected disability as posttraumatic stress disorder (PTSD), the Board notes that the diagnosis of his service-connected condition has been formally recognized as "other specified trauma or stressor related disorder.") As there was no evidence advancing or supporting a claim of secondary service connection for sleep apnea at the time of the last prior denial, the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Thus, new and material evidence has been received and the claim is reopened. For the reasons discussed below, the underlying claim for service connection is being remanded for additional development. 5. Entitlement to service connection for a right shoulder disability 6. Entitlement to service connection for a neck disability As noted, the Veteran has reported that he developed recurrent symptoms, such as pain in the shoulders and neck, while on active duty, which he has attributed to repetitive and rigorous in-service activities. The Board notes that the Veteran's service treatment records confirm that he was treated for complaints of neck pain, and strained neck muscle, in April 1995. The assessment was cervical strain. However, his neck and shoulders were evaluated as normal on a subsequent in-service examination in August 1995. He was also treated for complaints of right shoulder pain in November and December 1997. No separation examination report is of record. However, the Veteran was afforded a VA examination in December 2000 which, in pertinent part, evaluated his complaints of neck and bilateral shoulder pain. In pertinent part, the examination noted that appearance of the shoulder joints was within normal limits, bilaterally. Range of motion showed active flexion of 180 degrees bilaterally, abduction of 160 degrees bilaterally, and external rotation of 90 degrees and internal rotation of 90 degrees, bilaterally. The examiner noted that range of motion in both shoulders was additionally limited by lack of endurance. However, with the exception of a slight decrease in abduction, the shoulders exhibited normal range of motion. See 38 C.F.R. § 4.71, Plate I. Further, it was stated there was no pain, fatigue, or weakness noted. In addition, physical examination of the cervical spine did not reveal any painful motion, muscle spasm, weakness, or tenderness. Flexion was 65 degrees, extension was 50 degrees, right and left lateral flexions were 40 degrees, and right and left rotations were 80 degrees. These results do not reflect limitation of motion of the cervical spine. See 38 C.F.R. § 4.71a, Plate V. Further, X-rays of the shoulders and neck were normal. Moreover, the examiner stated there were not sufficient objective findings to render a diagnosis of the claimed shoulder disabilities; and there were no objective findings to render a diagnosis for the claimed neck disability. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In light of the foregoing findings, to the effect that the Veteran did not have identifiable pathology of the shoulders and neck in December 2000 so as to permit a diagnosis, the Board finds that the matter of whether currently diagnosed disorders of the shoulders and neck can be properly attributed to service is a complex matter that can be resolved only by way of competent medical opinion evidence. In this regard, the Board observes that nothing of record shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render medical opinions. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Nor is there any competent medical evidence of record which supports the Veteran's claims for service connection for his right shoulder and/or neck disabilities. Rather, an April 2016 VA examiner provided opinions which are against the claims. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. Most of the probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Initially, the Board notes the April 2016 VA examiner is identified as having a Medical Doctorate (M.D.). The Veteran has not challenged the examiner's qualifications to provide competent medical opinions. The examiner was familiar with the Veteran's medical history from review of the claims folder and accurately noted pertinent findings regarding the shoulders and neck in the examination report. Further, the examiner's opinions were not expressed in speculative or equivocal language and were supported by a rationale that was consistent with the record. Specifically, the examiner stated that the claimed conditions were less likely than not (less than 50 percent likely) incurred in or caused by the claimed in-service injury, event, or illness. In support of that opinion, the examiner noted that the service treatment records documented one complaint of neck pain, diagnosed as strain in 1995, and in 1997 the Veteran complained of right shoulder pain for two weeks, assessed as rotator cuff pain. No other notes were found to suggest any chronic, ongoing sequelae resulting from these acute and apparently self-limiting complaints. No competent medical evidence is of record which explicitly refutes the opinions of the April 2016 VA examiner on these matters. Further, the Veteran has not identified any deficiency with respect to the examiner's opinions. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). In light of the foregoing, the Board finds the April 2016 VA examiner's opinions regarding the etiology of the Veteran's right shoulder and neck disabilities are adequate, persuasive, and entitled to significant probative weight. Based on review of the record, the Board finds that the preponderance of the evidence is against a finding that the current disabilities of the Veteran's shoulders and neck were incurred in or are otherwise the result of active service. Arthritis was not shown in service or during the one-year period following service, and no other basis for establishing service connection for these disabilities is demonstrated by the record, to include on the basis of the presumptive provisions set out at 38 C.F.R. §§ 3.307 and 3.309 or the secondary service connection provisions of 38 C.F.R. § 3.310. The benefit of the doubt doctrine is not for application, and the appeal of these issues must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability As noted, while the RO found that new and material evidence had been received to reopen other claims, it found that new and material evidence had not been received to reopen the previously denied claim for service connection for a left shoulder disability. For that reason, the RO did not reach the merits of the claim. To avoid any prejudice to the Veteran, a remand for AOJ consideration of the merits of this matter, in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 2. Entitlement to service connection for sleep apnea Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, "aggravation" is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Here, the Board notes that a February 2016 VA examiner provided an opinion against the Veteran's sleep apnea being proximately due to or the result of his service-connected acquired psychiatric disorder. However, no express opinion was provided regarding secondary aggravation. Without such an opinion, the report is incomplete. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). Additional development is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007) These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any non-VA care providers who may possess new or additional evidence pertinent to the issue remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination by an appropriately qualified clinician for purposes of addressing the etiology of his sleep apnea. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should express an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's sleep apnea (a) was caused or (b) has been aggravated (i.e., permanently or temporarily increased in severity beyond natural progression) by his service-connected acquired psychiatric disorder. A complete rationale for all opinions expressed should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental SOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.