Citation Nr: 21076532 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-14 876 DATE: December 27, 2021 ISSUES Whether new and material evidence sufficient to reopen the claim for service connection for back pain has been received, and if so, should the claim be granted. Whether new and material evidence sufficient to reopen the claim for service connection for headaches has been received, and if so, should the claim be granted. Entitlement to service connection for back pain. Entitlement to service connection for headaches. Entitlement to service connection for neck pain. Entitlement to service connection for sleep apnea. ORDER New and material evidence sufficient to reopen the claim for service connection for back pain has been received, and to that extent only the claim is granted. New and material evidence sufficient to reopen the claim for service connection for headaches has been received, and to that extent only the claim is granted. REMANDED Entitlement to service connection for back pain is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for neck pain is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. A September 2009 rating decision denied a claim for service connection for back pain. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. Evidence received since the September 2009 rating decision is not cumulative and redundant of the evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a back disability. 3. A September 2009 rating decision denied a claim for service connection for headaches. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 4. Evidence received since the September 2009 rating decision is not cumulative and redundant of the evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claim of service connection for headaches. CONCLUSIONS OF LAW 1. The November 2011 rating decision which denied service connection for back pain is final. 38U.S.C. §§7104, 7105; 38C.F.R. §§3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for back pain has been received, and the claim is reopened. 38U.S.C. §5108; 38C.F.R. §3.156(a). 3. The September 2009 rating decision which denied service connection for headaches is final. 38U.S.C. §§7104, 7105; 38C.F.R. §§3.104, 20.302, 20.1103. 4. New and material evidence sufficient to reopen the claim of service connection for headaches has been received, and the claim is reopened. 38U.S.C. §5108; 38C.F.R. §3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 2002 to October 2006. The record reflects the Veteran had service in Iraq and Afghanistan and received the Combat Action Ribbon, among other decorations for his service there. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021 the Veteran testified before the undersigned Veterans Law Judge in a video conference Board hearing. A transcript of the testimony offered at the hearing has been associated with the record. The Board finds that further evidentiary development is required before the claims on appeal can be adjudicated. 1. Whether new and material evidence sufficient to reopen the claim for service connection for back pain as been received, and if so should the claim be granted. 2. Whether new and material evidence sufficient to reopen the claim for service connection for headaches has been received, and if so should the claim be granted. Petition to Reopen In September 2009, VA denied the original claims of entitlement to service connection for back pain and headache disabilities. The claims were originally denied because the evidence did not show a diagnosis for the Veteran's claimed back pain nor did it show a nexus for either disability back to service. The RO reviewed the Veteran's available service treatment records (STRs), VA treatment records, and his statements regarding the disabilities. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those decisions. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decisions became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002). The Veteran sought to reopen the claim for back pain in July 2011. The RO again declined to reopen the Veteran's claim in a November 2011 rating decision on the basis that no new and material evidence had been submitted. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decisions, nor did he assert there was clear and unmistakable error in the rating decision. Therefore, that decision too became final. Id. The Veteran sought to reopen the claims for service connection for the claimed back and headache disabilities in July 2014. The RO reviewed the Veteran's claims file and in a March 2015 rating decision, the RO declined to reopen the claims and denied them on the basis that no new and material evidence had been received. The Veteran filed a NOD in June 2015. VA issued a statement of the case (SOC) in February 2018. The Veteran perfected an appeal to the Board in March 2018 and the appeal was certified before the Board in May 2018. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, 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. 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 C.F.R. § 3.156(a) (2020). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The Board considers the last, final denials to be the September 2009 rating decision for the headache disability and the November 2011 rating decision for the back disability. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Claims Reopened The evidence of record in September 2009 and November 2011 consisted of service records, including personnel and medical records, and VA treatment records. The evidence of record at that time did not establish a diagnosis of a back disability nor did it establish a nexus back to service for either disability. Since the September 2009 and November 2011 rating decisions, the Veteran's file has additional VA treatment records as well as lay statements that have been attached to the claims file. Also, the Veteran provided testimonial evidence during his July 2021 Board hearing with the undersigned Veterans Law Judge. The Veteran's testimony indicates that in addition to his contention that he injured his back during a LAV accident in service, he also believes that his back injury may have occurred from carrying heavy backpacks and frequently driving on unpaved roads while deployed. He further testified that he self-treated his back pain in service and that he continued to experience ongoing symptoms since discharge. As it relates to his headaches the Veteran testified that his headaches have continued to occur regularly since his discharge since service. This new evidence is not cumulative or redundant of the evidence previously of record. The Board is reminded in this regard that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade. And further, that consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. This newly received evidence basically provides a more complete picture as to the nature of the Veteran's back and headache disabilities in question, and under the low threshold standard could reasonably trigger the Secretary's duty to assist. Id. at 118. Therefore, assuming its credibility for the purpose of the threshold question of whether the claim can be reopened, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim of service connection for a back pain and headache disability. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for back pain and a headache disability is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. To that extent only, the claim to reopen for service connection for back pain and a headache disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for back pain is remanded. 2. Entitlement to service connection for neck pain is remanded. The Veteran contends that he is entitled to service connection for his claimed back and neck disabilities because they began their onset while he was deployed in Iraq following a vehicle accident. The Veteran has also asserted that he believes that his neck pain may be secondary to his back pain. The Veteran's STRs show that he reported a history of back pain during his deployment in September 2005. The STRs also reflect that in October 2006 the Veteran indicated that he had recurrent back pain. During a May 2011 VA mental health examination, the Veteran reported that during service he continued to experience back problems from traveling in LAVs and carrying large backpacks while on active- duty service. The Veteran's wife, who was a medic in the Army, provided a lay statement in September 2014 where she stated that she has known the Veteran to have constant back pain since at least January 2006, which has limited his ability to do many things such as bending or stooping, doing laundry and mowing the yard. During his July 2021 Board hearing the Veteran credibly testified that while deployed in Iraq in May 2005 he was riding in a Light Armored Vehicle (LAV) which was in an accident and went down into a ravine. The Veteran has asserted that he has felt pain in his back and neck since that incident. In addition to the LAV accident, the Veteran testified that during his deployment he would regularly ride in LAVs on unpaved roads and have to carry heavy backpacks, and he believed that these activities may have also contributed to his back and neck pain. Furthermore, the Veteran testified that he believed that his neck disability may be secondary to his back disability. The Board notes that the Veteran has not been provided with VA examinations for his back or neck disabilities nor has he been provided with medical opinions to address the issue of etiology. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i) (2017). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, the Board finds that the McLendon criteria have been satisfied. Specifically, there is competent evidence that the Veteran has a back disability which may be directly associated with his active service. There is also competent evidence that the Veteran has a neck disability which may be directly or secondarily associated with active service. The Board finds that there is insufficient competent medical evidence on file for the Board to make a decision on the claims. As such, remand for examinations and medical opinions is necessary. Additionally, in providing an examination and rendering an opinion the examiner(s) must be sure to adequately address the Veteran's complaints of pain in his neck and back. As noted above, the Veteran has generally claimed that he experiences back and neck pain and that this has led to some functional loss, including decreased activity levels. In Saunders v. Wilkie, the Federal Circuit found that the term "disability" as used in 38U.S.C. §1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. A VA medical opinion is needed to assess the functional impairment of the Veteran's back and neck pursuant to Saunders v. Wilkie. If such functional impairment is shown, opinions must also be obtained as to the question of whether it is as likely as not related to the Veteran's period of service. 3. Entitlement to service connection for headaches is remanded. The Veteran contends that his headache disability had its onset during service and is related to his active duty service. The Veteran has also contended that his headaches may be secondary to his back or neck pain as well as his service-connected PTSD. The record reflects that in an August 2011 rating decision the Veteran was granted service connection for PTSD, effective April 21, 2009. The Board notes that the Veteran's October 2006 separation examination shows that the Veteran did report that he experienced headaches several times a week. At that time the examiner documented that these headaches were likely tension- type headaches. In the September 2014 statement from the Veteran's wife, she wrote that the Veteran wakes up daily with headaches that continue throughout the day. During the July 2021 Board hearing the Veteran credibly testified that his headaches began during his first deployment. He testified that since discharge he has continued to have several headaches a day. The Veteran also testified that he believes that his headaches may be secondary to the trauma related his back and neck injuries that he sustained while in service, or alternatively may be secondary to his service-connected PTSD. The Board notes that the Veteran has not been provided with a VA examination for his headache disability, nor has he been provided with a medical opinion to address the issue of etiology. In consideration of the above, the Board finds that the McLendon criteria as outlined above have been satisfied as it relates to this claim. Specifically, there is competent evidence that the Veteran has a headache disability which may be directly or secondarily associated with his active service. The Board finds that there is insufficient competent medical evidence on file for the Board to make a decision on the claim. As such, remand for an examination and medical opinion is necessary. 4. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea began in service and is related to his active- duty service. Alternatively, the Veteran has asserted that his sleep apnea may be secondary to his service-connected PTSD. The Veteran's STRs reflect that during a May 2004 Post- Deployment Health Assessment, following deployment to Afghanistan, the Veteran reported symptoms of feelings of tiredness after sleeping. Also, following his deployment to Iraq and Kuwait in January 2005, the Veteran again reported feelings of tiredness after sleeping. In the September 2014 statement submitted by the Veteran's wife she stated that she has been with the Veteran since January 2006. She wrote that they moved in together in May 2009, but even before that time she noticed that the Veteran was experiencing symptoms of sleep apnea, such as gasping for air while he was sleeping. In his May 2015 NOD the Veteran wrote that he was seen by a clinical psychologist who told him that his sleep apnea may be secondary to his service-connected PTSD. The record reflects that since the March 2015 rating decision denying the claim partly on the basis that the Veteran did not have a diagnosis of a sleep disability, the Veteran had a polysomnogram performed in January 2019 which shows a diagnosis of obstructive sleep apnea. Furthermore, during the Veteran's July 2021 Board hearing the Veteran credibly testified that he began to experience symptoms of snoring and daytime tiredness during his first deployment and has experienced ongoing symptoms since discharge from service. The Board notes that the Veteran has not been provided with a VA examination for his sleep apnea nor has he been provided with a medical opinion to address the issue of etiology. Here, the Board finds that the McLendon criteria as outlined above have been satisfied. Specifically, there is competent evidence that the Veteran has sleep apnea which may be directly associated with his active service or may be secondary to his service-connected PTSD, but there is insufficient competent medical evidence on file for the Board to make a decision on the claim. As such, remand for an examination and medical opinion is necessary. Additionally, the Board notes that the record indicates there appear to be outstanding records relevant to the Veteran's claim. As noted above, the Veteran reported in his May 2015 NOD that he has seen a clinical psychologist who told him that his sleep apnea was due to his service-connected PTSD. It does not appear as though these records have been associated with the claims file. VA has a duty to assist the Veteran in obtaining all relevant records. See 38U.S.C. §5103A; 38C.F.R. §3.159. This duty has not been met with regard to the outstanding records, and therefore, on remand, the RO should follow proper procedures to obtain and associate these records with the claim file. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide names, addresses and approximate dates of treatment of his service-connected PTSD. The Veteran should be provided the appropriate releases for VA to obtain any identified private sources of treatment. Thereafter, the AOJ should attempt to obtain outstanding records from any identified sources for which the Veteran has provided appropriate signed releases. Any records obtained should be associated with the claims file. All attempts to obtain these records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his obstructive sleep apnea. Following a complete review of the Veteran's claims file, the examiner is asked to address the following: (a) Opine whether it is at least as likely as not (50 percent or greater likelihood) Veteran's current sleep apnea had its onset during service or is otherwise related to service. When considering this question, the examiner is to consider all lay statements of record carefully, VA treatment records and examinations and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is asked to consider and discuss the Veteran's May 2004 and January 2005 in-service reports of feeling tired, as well as the September 2014 statement from his wife that she reported that she observed him experiencing sleep apnea symptoms while in service. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's sleep apnea. The examiner must also remain mindful that a recent precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). (c) If aggravation is found, provide the baseline manifestations prior to aggravation and the increased manifestations due to the service-connected PTSD. A detailed rationale must be provided for any opinion offered. 4. Schedule the Veteran for an examination by an appropriate clinician(s) to determine the nature and etiology of his claimed back and neck disabilities. The electronic claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. As it relates to the Veteran's back, the examiner is requested to address the following: (a) The examiner is to provide a diagnosis which accounts for the Veteran's symptoms for his claimed back disability during the pendency of the appeal. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability. Complete the "Functional Impact" section of the report. Please note case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under38U.S.C. §1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) Then, for any/all disabilities found during the period on appeal, address: Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed back disability had its onset during service or is otherwise related to an in-service injury, event or disease, to include the May 2005 LAV accident, carrying heavy backpacks or driving on unpaved roads during service. When considering this question, the examiner is to consider all lay statements of record carefully, VA treatment records and examinations and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is asked to consider and discuss the Veteran's September 2005 and October 2006 in-service complaints of back pain, as well as his July 2021 Board hearing testimony that his back pain has continued since discharge. As it relates to the Veteran's neck, the examiner is requested to address the following: (a) The examiner is to provide a diagnosis which accounts for the Veteran's symptoms for his claimed neck disability during the pendency of the appeal. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability. Complete the "Functional Impact" section of the report. (b) Then, for any/all disabilities found during the period on appeal, address the following: (1) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed neck disability had its onset during service or is otherwise related to an in-service injury, event or disease, to include the May 2005 LAV accident, carrying heavy backpacks or driving on unpaved roads during service. (2) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed neck disability was caused or aggravated by the Veteran's claimed back disability. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's neck disability. (3) If aggravation is found, provide the baseline manifestations prior to aggravation and the increased manifestations due to the claimed back disability. A complete rationale should be provided for all opinions expressed. 5. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his headache disability. Following a complete review of the Veteran's claims file, the examiner is asked to address the following: (a) Opine whether it is at least as likely as not (50) percent or greater likelihood) that the Veteran's headache disability had its onset during service or is otherwise related to service. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed headache disability was caused or aggravated by the Veteran's service-connected PTSD. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's headache disability. (c) If aggravation is found, provide the baseline manifestations prior to aggravation and the increased manifestations due to PTSD. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed neck disability was caused or aggravated by the Veteran's claimed back disability. (e) If aggravation is found, provide the baseline manifestations prior to aggravation and the increased manifestations due to the claimed back disability. When considering this question, the examiner is to consider all lay statements of record carefully, VA treatment records and examinations and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is asked to consider and discuss the Veteran's October 2006 in-service report of headaches, as well as his July 2021 Board testimony that he has continued to experience headaches since discharge. A complete rationale should be provided for all opinions expressed. 6. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim with consideration of the evidence added to the electronic record since the SOC in February 2018. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a SSOC and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, Associate 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.