Citation Nr: 21075948 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 19-06 800 DATE: December 22, 2021 ORDER The application to reopen a claim of service connection for sleep apnea is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for lumbosacral strain and degenerative arthritis of the lumbosacral spine is granted. REMANDED Entitlement to service connection for bilateral hip disability is remanded. Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection for bilateral foot disability is remanded. FINDINGS OF FACT 1. The Veteran's claim of service connection for sleep apnea was originally denied in a February 2014 rating decision on the basis that the disability was not incurred in or caused by service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the February 2014 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for sleep apnea, the absence of which was the basis of the previous denial. 3. The evidence is at least evenly balanced as to whether the Veteran's sleep apnea began during active service. 4. The evidence is at least evenly balanced as to whether the Veteran's lumbosacral strain and degenerative arthritis of the lumbosacral spine began during active service. CONCLUSIONS OF LAW 1. The AOJ's February 2014 decision that denied the claim of service connection for sleep apnea is final. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. 2. The evidence received since the February 2014 AOJ decision is new and material and reopening of the claim of service connection for sleep apnea is therefore warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1111, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbosacral strain and degenerative arthritis of the lumbosacral spine are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to May 1970 and from June 1970 to January 1971, which includes service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) from an April 2015 rating decision. An informal hearing conference with a Decision Review Officer (DRO) was conducted in August 2016 in lieu of a formal hearing and a report of that conference has been associated with the Veteran's claims file. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2021 hearing and a transcript of the hearing is associated with his claims file. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen a claim of service connection for sleep apnea The Veteran's claim of service connection for sleep apnea was originally denied in a February 2014 rating decision on the basis that the disability was not incurred in or caused by service. Specifically, the AOJ explained that although the Veteran was diagnosed as having sleep apnea, his service treatment records were negative for complaints, diagnosis, or treatment of sleep apnea. Also, there was no other medical evidence of a connection between the Veteran's sleep apnea and an event, injury, or disease during service. The Veteran was notified of the February 2014 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the February 2014 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. The pertinent new evidence received since the February 2014 denial of service connection for sleep apnea includes the Veteran's testimony during the September 2021 Board hearing. This additional evidence indicates that the Veteran began to experience disrupted breathing and gasping for air while sleeping during service. Therefore, the additional evidence pertains to an element of the claim of service connection for sleep apnea that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran's current sleep apnea may have had its onset in service. The evidence is, therefore, new and material, and the claim of service connection for sleep apnea is reopened. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Arthritis is included among the list of chronic diseases. Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Entitlement to service connection for sleep apnea, lumbosacral strain, and degenerative arthritis of the lumbosacral spine The Veteran contends that he has current sleep apnea and back disability which had their onset in service. The Board finds, for the following reasons, that the Veteran has current diagnoses of sleep apnea, lumbosacral strain, and degenerative arthritis of the lumbosacral spine and that the evidence is at least evenly balanced as to whether these disabilities began during active service. Medical records, including the reports of VA sleep apnea and back examinations dated in February 2019, show that the Veteran has been diagnosed as having sleep apnea, lumbosacral strain, and degenerative arthritis of the lumbosacral spine. Therefore, current sleep apnea and back disability have been demonstrated. As an initial matter, the Board notes that the Veteran has reported that he experienced sleep problems prior to service. Regardless, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b). Although the Veteran is certainly competent to report a history of sleep symptoms prior to service, a veteran's report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness. Miller v. West, 11 Vet. App. 345 (1998). There is no other evidence of any pre-existing sleep disability prior to service and the Veteran's November 1968 and May 1970 entrance examinations were normal other than for obesity, vision problems, scars, and tattoos. Therefore, the Board finds that the evidence is not clear and unmistakable that any sleep disability pre-existed service and was not aggravated in service and the Veteran is presumed sound at service entrance. 38 U.S.C. § 1111. There is evidence of sleep apnea and back symptoms in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran has reported that he began to experience disrupted breathing and gasping for air while sleeping in service which was observed by his fellow service members. Also, he began to experience lower back pain in service after he fell off a weapon's carrier while carrying a full load of gear. Moreover, the post-service medical records and lay statements essentially indicate that the Veteran has experienced continuous sleep apnea and back symptoms in the years since service. The Veteran is competent to report sleep apnea and back symptoms in service and continuous symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is no evidence to explicitly contradict his reports and they are generally consistent with the evidence of record. Thus, the Board finds that the reports of sleep apnea and back symptoms in service and continuous symptoms in the years since service are credible. The physician who conducted the February 2019 VA back examination opined that the Veteran's claimed back disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. He reasoned that there were no in-service treatment records for a back condition with pain. The Veteran is a retired delivery truck operator with workers compensation records of work-related back injury. It was difficult to reconcile his current back complaints and examination to an uneventful military service more than 40 years prior to the February 2019 examination. The February 2019 opinion is of limited probative value because it is essentially based solely on the absence of evidence of treatment for back symptoms in service, and the physician did not acknowledge or discuss the Veteran's competent and credible reports of back injury in service and continuous back symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In sum, the evidence reflects that the Veteran experienced sleep apnea and back symptoms in service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having current sleep apnea, lumbosacral strain, and degenerative arthritis of the lumbosacral spine. There is no medical opinion that is contrary to a conclusion that the current sleep apnea had its onset in service. Also, there is no adequate medical opinion that is contrary to a conclusion that the current lumbosacral strain and degenerative arthritis of the lumbosacral spine had their onset in service. Thus, the evidence is at least evenly balanced as to whether the Veteran's current sleep apnea, lumbosacral strain, and degenerative arthritis of the lumbosacral spine had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea, lumbosacral strain, and degenerative arthritis of the lumbosacral spine is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"); Maples v. Wilkie, No. 18-2016, 2019 U.S. App. Vet. Claims LEXIS 199 (Feb. 11, 2019) (mem dec) (Falvey, J.) (lay evidence can be sufficient to support a claim for service connection for sleep apnea); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hip disability is remanded. The Veteran contends that he has current bilateral hip disability which is related to his various physical duties in service, to include operating heavy construction equipment on uneven terrain. In the alterative, he contends that his hip disability is associated with his now service-connected back disability. His medical records reveal that he has experienced hip pain and that back symptoms have radiated to his lower extremities. Overall, there is evidence that the Veteran has persistent or recurrent symptoms of bilateral hip disability and that any such disability may be related to now service-connected back disability, and the record does not contain sufficient information to make a decision on the claim. Therefore, the Veteran should be afforded an appropriate examination upon remand to assess the nature of his claimed bilateral hip disability and to obtain a medical opinion as to whether any such disability is related to service or is caused or aggravated by now service-connected back disability. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, a September 2009 VA mental health outpatient initial evaluation note indicates that the Veteran reported that he was in receipt of Social Security Administration (SSA) disability benefits for unspecified disability. Any outstanding records pertaining to the Veteran's claim(s) for SSA benefits may be relevant to the remaining issues on appeal. Hence, the AOJ should attempt to obtain any such relevant records upon remand. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Pacific Islands Healthcare System and are dated to January 2019. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for bilateral knee disability is remanded. The Veteran contends that he has current bilateral knee disability which is related to his various physical duties in service, to include operating heavy construction equipment on uneven terrain. In the alterative, he contends that his knee disability is associated with his now service-connected back disability. A VA knee examination was conducted in February 2019 and the Veteran was diagnosed as having bilateral knee joint osteoarthritis. The physician who conducted the examination opined in two separate opinions that the Veteran's claimed knee disability was not likely incurred in or caused by service. These opinions are inadequate because although the physician reasoned that there was no evidence of any knee problems during service, the Veteran's service treatment records reveal that he was treated for lower leg pain in the shins in January 1969 and a twisted right knee in February 1970. Also, the physician did not acknowledge or discuss the Veteran's reported physical duties in service and did not provide any opinion as to whether the Veteran's claimed knee disability is caused or aggravated by his now service-connected back disability. In light of the inadequacies of the February 2019 opinions, a remand is necessary to obtain new opinions as to whether the Veteran's claimed bilateral knee disability is related to service or is caused or aggravated by his now service-connected back disability. Also, all outstanding SSA records and VA treatment records should be secured upon remand. 3. Entitlement to service connection for bilateral foot disability is remanded. The Veteran contends that he has current bilateral foot disability which is related to his various physical duties in service, to include operating heavy construction equipment on uneven terrain. In the alterative, he contends that his foot disability is associated with his now service-connected back disability. A VA foot examination was conducted in February 2019 and the Veteran was diagnosed as having bilateral plantar fasciitis. The physician who conducted the examination opined in two separate opinions that the Veteran's claimed foot disability was not likely incurred in or caused by service. These opinions are inadequate because the physician did not acknowledge or discuss the Veteran's reported physical duties in service and did not provide any opinion as to whether the Veteran's claimed foot disability is caused or aggravated by his now service-connected back disability. In light of the inadequacies of the February 2019 opinions, a remand is necessary to obtain new opinions as to whether the Veteran's claimed bilateral foot disability is related to service or is caused or aggravated by his now service-connected back disability. Also, all outstanding SSA records and VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for hip disability, knee disability, and foot disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for hip disability, knee disability, and foot disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records from the VA Pacific Islands Healthcare System for the period since January 2019; and all such relevant records from any other sufficiently identified VA facility. 3. Contact the SSA and request a copy of that agency's decision(s) for disability and/or supplemental security income benefits and all relevant records pertaining to the Veteran's claim(s). Document all requests for information as well as all responses in the claims file. 4. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature of any current hip disability and whether any such disability is related to service or service-connected back disability. The examiner must review the claims file. The examiner must opine whether any hip disability experienced by the Veteran since approximately November 2014 at least as likely as not (1) began during any period of active service; (2) manifested within one year after separation from any period of active service (in the case of any currently diagnosed arthritis); (3) is related to an injury or disease during service, including his physical duties in service (to include, but not limited to, operating heavy construction equipment on uneven terrain); (4) is caused by service-connected lumbosacral strain and degenerative arthritis of the lumbosacral spine; OR (5) is aggravated by service-connected lumbosacral strain and degenerative arthritis of the lumbosacral spine. The examiner must provide reasons for each opinion given. 5. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any knee disability experienced by the Veteran since approximately November 2014 at least as likely as not (1) began during any period of active service; (2) manifested within one year after separation from any period of active service (in the case of any currently diagnosed arthritis); (3) is related to an injury or disease during service, including his treatment for lower leg pain in January 1969 and for a twisted right knee in February 1970, and his physical duties in service (to include, but not limited to, operating heavy construction equipment on uneven terrain); (4) is caused by service-connected lumbosacral strain and degenerative arthritis of the lumbosacral spine; OR (5) is aggravated by service-connected lumbosacral strain and degenerative arthritis of the lumbosacral spine. The clinician is advised that although the Veteran suggested that he had a football injury to his legs prior to service, he was presumed sound at service entrance. The clinician must provide reasons for each opinion given. 6. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any foot disability experienced by the Veteran since approximately November 2014 at least as likely as not (1) began during any period of active service; (2) manifested within one year after separation from any period of active service (in the case of any currently diagnosed arthritis); (3) is related to an injury or disease during service, including his physical duties in service (to include, but not limited to, operating heavy construction equipment on uneven terrain); (4) is caused by service-connected lumbosacral strain and degenerative arthritis of the lumbosacral spine; OR (5) is aggravated by service-connected lumbosacral strain and degenerative arthritis of the lumbosacral spine. (CONTINUED ON NEXT PAGE) The clinician must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.