Citation Nr: 21075401 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 09-06 588 DATE: December 20, 2021 ORDER New and material evidence having been received, reopening of the previously denied claim for service connection for sleep apnea is granted. Service connection for a skin disability is granted. REMANDED Service connection for sleep apnea is remanded. Service connection for dengue fever is remanded. Service connection for a lumbar spine (low back) disability is remanded. An initial rating for diabetes mellitus, type II, in excess of 20 percent is remanded. An initial rating for peripheral neuropathy of the right lower extremity (now also with sciatica) in excess of 10 percent since April 13, 2006, and 20 percent since July 11, 2007, is remanded. An initial rating for peripheral neuropathy of the left lower extremity (now also with sciatica) in excess of 10 percent since April 13, 2006, 20 percent since July 11, 2007, and 80 percent since May 25, 2012, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to September 29, 2008, is remanded. FINDINGS OF FACT 1. A rating decision with notice to the Veteran in September 2005 denied service connection for sleep apnea; there was no timely notice of disagreement, new and material evidence was not received within the appeal period, and no official or relevant service records were added to the claims file after the rating decision. 2. New evidence received since the prior denial is material because it is neither cumulative or redundant of prior evidence, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Appellant's favor, the Veteran's skin disability, including dermatitis or eczema, was persistently recurrent since service and also caused by his service-connected posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The prior denial in September 2005 was final, but the criteria to reopen the claim for service connection for sleep apnea are met. 38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103. 2. The criteria for service connection for a skin disability, including dermatitis or eczema, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Marines from April 1962 to October 1968. He died in January 2014, and the Appellant is the Veteran's surviving spouse who has been substituted as the claimant to continue the appeal. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2005, July 2006, August 2006, November 2007, July 2009, and April 2013. In January 2018, the Appellant withdrew the Veteran's prior Board hearing request. The Board remanded these matters in April 2018 and February 2021 for additional evidentiary development. Additional procedural history is summarized in the February 2021 remand. Upon remand, an August 2021 rating decision granted the claim for service connection for sciatica of the bilateral lower extremities as aggravated by the service-connected peripheral neuropathy, and the disability was rated together with the peripheral neuropathy of each lower extremity, as noted in the issues above. Although an August 2021 supplemental statement of the case (SSOC) reopened sleep apnea and denied the issue on the merits, the question of reopening is a threshold jurisdictional question that the Board must also address de novo. The Board notes that numerous notices from VA to the Appellant were addressed to the Veteran's name, not the Appellant, after his death in January 2014, including as recently as October 19, 2021. This is a regrettable oversight for which the Board apologizes on behalf of VA, but which appears to have been remedied. The most recent letters in the file from the Veterans Benefits Administration (VBA) on October 29, 2021, and from the Board in November 2021, were to the Appellant. Reopening and Service Connection In general, decisions of the agency of original jurisdiction (AOJ) that are not appealed within one year of notice of the decision are final. See 38 U.S.C. §§ 5104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. In the legacy system of VA appeals (that is, appeals of those decisions made prior to February 19, 2019), a final claim that was disallowed may only be reopened if new and material evidence is received. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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 and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a), (b). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead 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. Id. at 118. In other words, a "claim should be reopened if, in light of the other evidence of record and further VA assistance, [the] newly submitted evidence relates to an unestablished fact and raises a reasonable possibility of substantiating the claim." Mitchell v. McDonald, 27 Vet. App. 431, 440 (2015). For the purposes of reopening, all new evidence received is presumed credible unless it is inherently or patently not credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216, 220 (1994). Once a claim is reopened, the Board may determine that the new evidence is not credible or is outweighed by other evidence in addressing the merits of the reopened claim. Shade, 24 Vet. App. at 117. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the three-element test for service connection requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection will be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or is aggravated beyond its natural progression, by service-connected disability. 38 C.F.R. § 3.310. In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Petition to reopen the claim for service connection for sleep apnea The Veteran's December 2004 prior claim for sleep apnea was denied in a September 2005 rating decision, primarily due to no in-service complaints and no nexus to service, to include herbicide agent (Agent Orange) exposure in Vietnam. He was notified of the decision but did not appeal, and no relevant evidence was received within one year after the decision. Therefore, the denial became final. 38 U.S.C. §§ 5104(a), 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. The electronic or virtual claims file indicates that a set of service treatment records was received in October 2015, and another set was received October 4, 1968, which was actually the date of the Veteran's service separation examination. One page in that set is a copy of a handwritten post-it note and indicates a "revision date" of September 2015. However, it is clear that the information in both sets of service treatment records were considered in the prior decision, and these dates in 2015 were the electronic upload date, not date of receipt. Additionally, it appears that military personnel records were received in April 2012 in connection with a claim for a mental health disorder (to include posttraumatic stress disorder or PTSD). Although some of the records are labeled as received in October 2015, there is also a page one of those sets with a copy of a post-it note and a "revision date" of September 2015. Showing this was the electronic upload date. The Veteran's military personnel records do not have information relevant to this claim for sleep apnea. Thus, no additional relevant service records were added after September 2005 to render the decision not final. See 38 C.F.R. § 3.156(c). To reopen the claim there must be new and material evidence concerning an unestablished element: a nexus, or another in-service injury or disease. At the time of the prior claim and denial, the Veteran asserted in December 2004 that his sleep apnea was related to Agent Orange exposure or was incurred in January 1965, but he identified treatment in April 2002. The Veteran had service in Vietnam at various points from November 1964 to December 1965. Service treatment records showed no sleep complaints or diagnoses. During a June 2004 VA Agent Orange registry, the Veteran reported a diagnosis by sleep study in 2002. The Veteran submitted an informal claim to reopen in September 2008, asserting that he has sleep apnea based on only sleeping 3-4 hours daily since leaving Vietnam. The AOJ denied the claim to reopen in July 2009, leading to this appeal. Additional post-service medical records continue to note a diagnosis of sleep apnea in 2002. An August 2012 VA treatment record also noted that the Veteran was prescribed opioids for pain relief, and that opioids may make falling asleep easier, but in higher doses may make breathing in sleep more difficult, a condition called sleep apnea. A January 2014 VA record of emergency treatment for various conditions stated that "given yesterday's apnea" all pain medications were discontinued. A subsequent record on the date of the Veteran's death in January 2014 noted that his death was imminent, and he had difficulty breathing throughout the prior night and that morning, with periods of apnea up to 20 seconds that morning. Thus, it is unclear if the apneas in January 2014 were related to sleep apnea or otherwise. However, these records raise a secondary service connection theory for sleep apnea from medications for his service-connected disabilities. A nexus opinion for secondary service connection has not yet been requested. In August 2020, a VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in service because he was diagnosed by a sleep study in 2002, more than 30 years after service. There were no service records or medical literature to support service connection. However, the examiner did not consider the Veteran's reports of ongoing sleep problems since service noted above. The Veteran's reports of sleep problems since service and the notations of potential effects of opioids for pain on sleep apnea are new and material because they relate to the previously unestablished fact of a potential nexus to service or service-connected disability. This evidence is presumed credible for the purposes of reopening, and it raises a reasonable possibility of substantiating the claim, including triggering the need for medical opinions. Thus, the claim is reopened. 38 C.F.R. § 3.156. The appeal is granted to this extent, and the claim is remanded. 2. Service connection for a skin disability The Appellant and the Veteran prior to his death contend that he had a skin disability affecting the palms of his hands and soles of his feet that had been present since service and was due to herbicide agent (Agent Orange) exposure in Vietnam or was caused or aggravated by his PTSD as a reaction to stress. Considering the available lay and medical evidence and resolving reasonable doubt in the Appellant's favor, the Veteran's skin disorder of dermatitis or eczema either had its onset in service, with persistent recurring symptoms since that time, or was caused by stress from his PTSD. Therefore, service connection is warranted. For example, the Veteran stated in a February 2009 VA Form 9 (substantive appeal) prior to his death that he had stress-related breakouts on his hands and feet. He asserted that he did not have spongiform dermatitis as noted in a private record, and a provider at the National Institute of Health (NIH) at Bethesda Naval Hospital and told him that was not what the Veteran had. The Veteran stated that he never had these symptoms prior to service and that he first noted it in late 1965 after returning from Vietnam. He was later granted service connection for posttraumatic stress disorder (PTSD) based on stressful events during service in Vietnam. In his December 2004 claim, the Veteran reported that his skin problems occurred in November 1966 but were first treated in 2002 by a private provider, with subsequent treatment. He stated that his claimed problems generally had been present since the 1960s and became increasing problematic as he grew older. Subsequently, the Veteran consistently reported having an intermittent rash on his hands and feet during service and for more than 40 years, and that his skin breakouts seemed to occur when he was stressed or nervous. See, e.g., September 2008 notice of disagreement, August 2008 and November 2008 correspondences. In February 2005 and July 2008, the Veteran submitted a medical-based article from the internet noting that certain types of eczema or dermatitis, including on the hands and feet as found in this case, may be affected by stress and other factors. The Veteran's service treatment records generally do not reflect skin or rash complaints, and his October 4, 1968, examination for separation noted clinically normal skin. However, an October 4, 1968, consult also noted recent pruritis with hyperpigmentation and lichenification, which is a skin disorder. This generally supports the Veteran's reports of having skin problems that were present in service. Post-service medical records reflect various skin diagnoses. A July 2002 biopsy of the left palm by a private provider diagnosed spongiotic psoriasiform dermatitis, with lymphocytes in the areas of spongiosis. The report also noted a differential diagnoses of eczematous dermatitis or lymphomatoid eczematous dermatitis. A June 2004 VA Agent Orange registry noted the Veteran's report of skin rashes on his hands and other parts of his body, the 2002 biopsy overall diagnosis, and that he treated it with creams and ointments. Examination showed thick keratinized hyperpigmented skin on the palms of both hands and soles of both feet. A December 2006 VA treatment record found dyshidrotic eczema on the palms of both hands on examination, and noted that the Veteran had topical treatments for eczema. An April 2007 VA treatment record noted a medical problem of eczema. Although the Veteran had service in Vietnam, there is no competent evidence linking his skin disorder to his presumed herbicide agent exposure. See 38 C.F.R. § 3.307, 3.309. No further discussion is needed for this theory due to the full grant. An August 2020 VA examiner opined that the Veteran's skin disorder was less likely than not incurred in service. However, that opinion did not consider the Veteran's reports of experiencing persistently recurring skin problems since 1968, noting only that there was no documented treatment during service or after service for many years. Although the Veteran did not seek post-service treatment until 2002, he is competent to report having symptoms earlier without seeking treatment, and a lack of medical records alone does not render him not credible. Although the August 2020 VA examiner also gave negative opinions for secondary service connection, the examiner stated only that a skin disability and PTSD are distinct conditions with no relationship. This is conclusory and inadequate. A March 2021 VA examiner opined that the Veteran's current skin disorder was less likely than not caused or aggravated by his PTSD. For both opinions, the examiner explained that several dermatological conditions that are associated with PTSD, including atopic dermatitis, chronic urticaria, and psoriasis, but medical literature does not support a relationship with the Veteran's diagnosis of spongiotic psoriasiform dermatitis with eczema. This opinion is too narrowly focused, as the medical records include other less-specific diagnoses based on medical findings. When considering the additionally noted diagnoses, the rationale in this examiner's report supports secondary service connection based on causation or aggravation. The 2021 examiner further stated that the Veteran's reports of skin breakouts when he was stressed or nervous these were subjective without supportive medical evidence. However, the Veteran was competent to make these reports of noticeable symptoms, and his reports were generally consistent and credible in this regard. The lay and medical evidence is at least in relative equipoise as to a relationship between the Veteran's skin disorder prior to his death, to include various types of dermatitis or eczema, and service or PTSD. Therefore, reasonable doubt is resolved in the Appellant's favor, and service connection for the skin disorder is granted. REASONS FOR REMAND 3., 4., 5., 6., 7., 8., and 9. Service connection for sleep apnea; service connection for dengue fever; service connection for a lumbar spine disability; a higher initial rating for diabetes; a higher initial rating for peripheral neuropathy of the right lower extremity (now with sciatica); a higher initial rating for peripheral neuropathy of the left lower extremity (now with sciatica); and entitlement to a TDIU prior to September 29, 2008, are remanded. In the February 2021 remand, the Board directed that the agency of original jurisdiction (AOJ) make attempts to obtain any records of treatment for the Veteran at the National Institute of Health (NIH) in Bethesda, Maryland, based on reports from the Appellant in May 2020 and by the Veteran in May 2006 and February 2009. This development is relevant to all of the issues on appeal. The AOJ made two attempts directed to two separate addresses for the NIH; however, no response was received and no records were obtained. Instead, in June 2021 and November 2021, a request to each address was returned as undeliverable. Because the NIH is a Federal facility, VA has a duty to make as many attempts as necessary to obtain the records unless a finding is made that the records do not exist or further efforts would be futile. This duty has not yet been satisfied, the prior remand directive was not at least substantially completed, and another remand is required for this purpose. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 3.159. Additionally, another medical opinion is need for the reopened claim for service connection for sleep apnea. As summarized above, the Veteran reported ongoing sleep problems since service and records noted that opioids for pain "may" affect breathing during sleep or sleep apnea. An examiner should address direct and secondary service connection based on these notations and other relevant evidence. The prior Board remand directed that a medical opinion be obtained to as to service connection for a lumbar spine (low back) disorder to address the Veteran's report of a gunshot wound in the back and left lower extremity. A VA examiner should consider lay reports unless the Board finds them not credible. A March 2021 VA examiner opined that the Veteran's current low back disability is less likely than not related to service because there are no service treatment records, supporting documents, or evidence to show a back injury or gunshot wound in 1965 during service, as the Veteran reported in post-service records. These notations essentially indicate no medical support was found for a gunshot wound. Additionally, based on the currently available evidence, the Board finds the Veteran not credible as to having had a gunshot wound during service. As noted in the February 2021 Board remand, a March 2005 private treatment record noted the Veteran's report of a history of a gunshot wound to the left lower extremity and back in 1965, and a June 2007 private record similar noted a reported history of a gunshot wound to the back. To the extent the Veteran may have had combat service in Vietnam, the injury may not have been recorded at that time. However, this is the type of injury that would be expected to have some sort of followup treatment or, at the very least, evidence of a scar or retained shrapnel of some sort. There are no such reports, findings, or notations in the Veteran's medical records during or after service, to include in his separation examination. Although evaluations in service in 1966 and 1968 noted a scar on the left knee, the same scar was also noted on his 1962 service enlistment examination. The skin and spine were otherwise clinically normal, with the exception of recent pruritis (a rash) noted in a consult as discussed for the skin disorder issue above. The Veteran also did not mention any history of being shot or sustaining a gunshot wound, which would be unusual if such an injury had occurred during service. The Veteran and Appellant did not provide any additional information for his claim concerning any such injury, and he did not identify a gunshot wound as a stressor for his PTSD claim. Similarly, in a July 2012 VA mental health evaluation the Veteran reported that a friend was shot in the hand and died in Vietnam, but he did not mention himself being shot; this is also unexpected if such an injury did occur in service. These other records are more probative and outweigh the two notations of a gunshot wound. Thus, another medical opinion is unnecessary at this time for the Veteran's claim for a back disability. If any additional records obtained upon remand provide credible details for an in-service injury, to include evidence of residuals of a gunshot wound to the back, another opinion should be obtained. As to a TDIU, in the prior remand, the Board found that the issue of a TDIU prior to September 29, 2008, was raised by the Veteran's assertions of unemployability since 2004, and is inextricably intertwined with his claim for a low back disorder. A September 2007 decision of the Social Security Administration (SSA) found the Veteran disabled due to his low back disorder and coronary artery disease since January 1, 2007. Although it is not binding on the Board, the SSA decision and records have some probative value for VA claims. An April 2013 rating decision granted a TDIU, effective September 29, 2008, based primarily on the Veteran's PTSD, for which service connection was also granted as of September 29, 2008, with a 70 percent rating. Service connection for coronary artery disease was granted, effective May 25, 2012, with a 100 percent rating, in that decision. Thus, any work effects of PTSD may not be considered prior to September 29, 2008, and effects of coronary artery disease may not be considered prior to May 25, 2012. However, the Veteran's informal claim for service connection for a lumbar spine or low back disorder was received October 11, 2008, on a VA Form 9 that was signed September 25, 2008. An October 2008 letter from VA noted receipt of the new claim for a lumbar spine disorder, and a July 2009 rating decision that denied the claim also noted a claim received in October 2008. There is no suggestion that any claim for a low back disorder could be granted effective prior to September 25, 2008. See 38 C.F.R. § 3.400 (effective dates for service connection). Accordingly, even if service connection for a low back or lumbar spine disability is granted, any work effects from that disability may not support an earlier award of a TDIU. Nevertheless, the appeal includes the ratings for peripheral neuropathy and sciatica of the bilateral lower extremities, effective since April 13, 2006, and diabetes that is service-connected effective since February 9, 2005. There is currently a combined rating of 70 percent, effective since April 22, 2008, and combined ratings from 20 to 50 percent since February 9, 2005. If higher ratings are granted for diabetes or peripheral neuropathy with sciatica after remand, the threshold percentage for a TDIU may be met prior to April 22, 2008. See 38 C.F.R. § 4.16. An extraschedular TDIU may also be considered if he is unemployable due to service-connected disabilities prior to a threshold date. Id. On remand, the effects of service-connected disabilities with effective dates prior to September 29, 2008, may be considered in readjudicating entitlement to an earlier award TDIU. The matters are REMANDED for the following action: 1. Make additional attempts to obtain any records of treatment for the Veteran prior to his death in January 2014 from the National Institute of Health in Bethesda, Maryland, as identified in 2006 and 2009 (by the Veteran) and 2020 (by the Appellant). Efforts should continue until records are received or it is determined that such records do not exist or any further attempts would be futile. All efforts and findings should be documented. 2. Thereafter, obtain an addendum medical opinion from an appropriate clinician as to the etiology of the Veteran's obstructive sleep apnea, to address the following: (a.) Is it at least as likely as not that the Veteran's sleep apnea diagnosed in 2002 had its onset in service or was otherwise incurred in service? The examiner should consider the Veteran's competent lay reports of having ongoing sleep problems since service. See, e.g., VBMS NOD dated 9/25/08 (page 3). The Board makes no credibility finding at this time. However, the examiner should state whether any such sleep problems can be distinguished from sleep impairment due to his service-connected PTSD, and whether they were as likely as not a manifestation of sleep apnea. (b.) Is it at least as likely as not that the Veteran's sleep apnea was caused OR aggravated by opioids prescribed to treat pain for any of his service-connected disabilities? For this purpose, aggravation means any incremental increase in disability in a non-service-connected disability (i.e., any additional impairment of earning capacity) resulting from a service-connected condition, whether or not it is permanent. Along with other relevant evidence, the examiner should address the significance of medical notations concerning breathing difficulties or sleep apnea as a potential side effect of higher doses of opioids in 2012, and as to apneas and discharging pain medications in 2014. See, e.g., VBMS CAPRI received 8/25/21 (pages 657 & 1879) . (c.) The examiner is asked to explain the reasons behind any opinions and conclusions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If an opinion cannot be provided without resort to mere speculation, the examiner should explain why that is so. 3. After obtaining any outstanding available treatment records from the NIH, if and only if there is additional evidence of an in-service injury (to include evidence of residuals of a gunshot wound to the back), obtain an addendum medical opinion from an appropriate clinician as to the etiology of the Veteran's current back disability. (a.) The examiner should state whether it is at least as likely as not that the current back disorder had its onset in service or was otherwise incurred in service, with consideration of the additional evidence concerning a gunshot wound. (b.) The examiner is asked to explain the reasons behind any opinions and conclusions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If an opinion cannot be provided without resort to mere speculation, the examiner should explain why that is so. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.