Citation Nr: A21020467 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 191226-58115 DATE: December 23, 2021 ORDER New and relevant evidence has been received to readjudicate the claim of entitlement to service connection for a low back disability. New and relevant evidence has been received to readjudicate the claim of entitlement to service connection for an acquired psychiatric disability. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. An October 2019 rating decision denied service connection for a low back disability citing a lack of any in-service complaints, symptoms or treatment. A December 2019 rating decision found no new and relevant evidence had been received to readjudicate the claim. 2. New evidence has been received since the December 2019 rating decision that is relevant to the issue of entitlement to service connection for a low back disability. 3. An October 2019 rating decision denied service connection for an acquired psychiatric disability citing a lack of any in-service complaints, symptoms or treatment. A December 2019 rating decision found no new and relevant evidence had been received to readjudicate the claim. 4. New evidence has been received since the December 2019 rating decision that is relevant to the issue of entitlement to service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim of entitlement to service connection for a low back disability are met. 38 C.F.R. §§ 3.156, 3.2500, 3.2501. 2. The criteria for readjudicating the claim of entitlement to service connection for an acquired psychiatric disability are met. 38 C.F.R. §§ 3.156, 3.2500, 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 2008 to August 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO); therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies to this case. In the December 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. On October 15, 2020, the Veteran testified before a Veterans' Law Judge. Therefore, the Board may only consider the evidence of record at the time of the RO's decision on appeal (December 5, 2019), as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the October 15, 2020 hearing. 38 C.F.R. § 20.302. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claims of entitlement to service connection for a low back disability, an acquired psychiatric disability, and obstructive sleep apnea for further development, this additional evidence will be considered by the RO in the adjudication of those claims. The Board has broadened and recharacterized the appeal to consider all psychiatric diagnoses of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. New and relevant evidence has been received to readjudicate the claim of entitlement to service connection for a low back disability. 2. New and relevant evidence has been received to readjudicate the claim of entitlement to service connection for an acquired psychiatric disability A claimant or his or her authorized representative, if any, who disagrees with a prior VA decision may file a supplemental claim (see § 3.1(p)(2)) by submitting in writing or electronically a complete application (see § 3.160(a)) on a form prescribed by the Secretary any time after the agency of original jurisdiction issues notice of a decision, regardless of whether the claim is pending (see § 3.160(c)) or has become finally adjudicated (see § 3.160(d)). If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record. New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501. Regarding the Veteran's claim for a low back disability, he was originally denied service connection based on a claim submitted to the VA in March 2016 and was denied in a January 2017 rating decision for lack of an in-service incurrence of a disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In October 2019, the RO readjudicated the Veteran's claim regarding entitlement to service connection for a low back disability and denied it for the same reason as the January 2017 rating decision, or a lack of an in-service incurrence or injury. Id. In October 2019, the Veteran filed a supplemental claim and in December 2019, the RO declined readjudicating the Veteran's claim finding that no new and relevant evidence had been received. At his October 2020 Board hearing, the Veteran testified that the onset of his back pain began during boot camp when he was required to wear small arms protective inserts (SAPI) while standing and marching for long periods of time. See Board Hearing Transcript at 9. This evidence is new and relevant as it has not been previously considered and directly addresses the reason for the Veteran's continued denial of entitlement to service connection for a low back disability. Thus, readjudication of the claim is warranted. Regarding the Veteran's psychiatric disability, he was originally denied service connection in a March 2017 rating decision for lack of an in-service incurrence of a disease or injury. See Saunders, supra. In response to an August 2019 supplemental claim, the RO readjudicated the Veteran's claim and denied it for the same reason as the March 2017 rating decision. Id. In response to an October 2019 supplemental claim, the RO confirmed and continued the denial of entitlement to service connection for an acquired psychiatric disability and declined to readjudicate the claim, concluding that no new and relevant evidence had been received. See December 2019 rating decision. At his October 2020 Board hearing, the Veteran testified that the onset of his began during his active-duty service but immediately progressed after his discharge from active duty in August 2012 before he was formally diagnosed just over one month later. See Board Hearing Transcript at 5. This evidence is new as it was not previously of record. Moreover, it is relevant, as it relates to an in-service incurrence or injury. Thus, readjudication of the claim is warranted. REASONS FOR REMAND 3. Entitlement to service connection for a low back disability is remanded. The Veteran asserts that his low back disability had its onset during his active-duty service and is related to his active-duty service, to include as a result of the cumulative impact of standing and marching for long periods of time in boot camp while wearing SAPI and during infantry training marching for 10 to 25 miles with 50 to 80 pounds of gear. See August 2019 VA Form 20-0995, August 2019 representative argument, October 2020 Board Hearing Transcript at 9. Initially the Board notes that the Veteran is competent to report the onset of back pain during boot camp and has no reason to doubt his credibility as these assertions are consistent with the character of his service in the Marine Corps. 38 U.S.C. § 1154(a). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). In November 2018, a VA treatment provider diagnosed the Veteran with upper back pain likely due to myofascial pain syndrome. Additionally, a rating decision regarding entitlement to service connection for a low back disability was rendered while the claim was on appeal and made a favorable finding that the Veteran had a current diagnosis. 38 C.F.R. § 3.104(c). As noted above, the Veteran has competently and credibly reported that his back pain began in service and continued to the present. Thus, throughout the appeal period, the low bar of McLendon has been met. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The failure to obtain a medical examination and opinion represents a pre-decisional duty to assist error that must be corrected on remand. 38 C.F.R. § 20.802. As noted above, evidence was submitted into the record outside of the applicable hearing docket submission periods. 38 C.F.R. § 20.302. Specifically, a VA examination and medical opinion were submitted by the VA on October 2, 2020. The Board notes that the October 2020 VA examiner relied on a lack of treatment prior to the documented January 2017 motor vehicle accident in denying a nexus; however, the examiner failed to address the fact that the Veteran initially claimed service connection for a back disability in March 2016 well before the accident upon which he relied to form his negative opinion. The Veteran submitted a private medical nexus on February 23, 2021 that considers both the lay evidence of record as well as the motor vehicle accident relied upon by the October 2020 VA examiner. 4. Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran asserts that his psychiatric disability had its onset during his active-duty service. See March 2016 VA Form 21-526EZ, August 2019 and October 2019 VA Forms 20-0995. In this regard, the Veteran has a current diagnosis of generalized anxiety disorder. See February 2018 VA treatment records. The Veteran submitted medical evidence that he was diagnosed with generalized anxiety disorder on September 27, 2012 by a medical doctor approximately one month after his discharge from active duty and continued to receive treatment privately until June 2014. See June 2016 letter from Dr. I.G. The Veteran resumed treatment with VA providers in February 2018. Accordingly, the low bar of McLendon has been met. The failure of the RO to obtain a VA examination and opinion prior to the issuing the rating decision on appeal represents a pre-decisional duty to assist that must be corrected on remand. 38 C.F.R. § 20.802. 5. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran asserts that his currently diagnosed obstructive sleep apnea (OSA) had its onset during his active-duty service, to include as due to or aggravated by his service-connected deviated septum. See March 2016 and November 2018 VA Forms 21-526EZ. The Veteran has a current diagnosis of both central and obstructive sleep apnea. See November 2018 private treatment records, November 2019 VA examination report. While the Veteran was still on active duty, he complained of fatigue, daytime somnolence, and gasping for air upon awakening. See Service Treatment Records (STRs). Additionally, the Veteran's symptoms were severe enough that he was referred for a sleep study in July 2012. Id. In December 2018, a VA examiner rendered an opinion finding that the Veteran's sleep apnea did not have its onset during active duty because it was not diagnosed on active duty. The December 2018 medical opinion is inadequate as it was conclusory without a medical rationale, it failed to consider the in-service sleep study and whether the symptoms recorded in July 2012 represent the onset of sleep apnea (simply concluding the diagnosis was not present) and failed to consider the symptoms of sleep apnea noted on the Veteran's separation report of medical examination. See STRs. In November 2019, a VA examiner opined that because the Veteran was not diagnosed until November 2019, that the in-service complaints and symptoms could not represent the onset of sleep apnea; however, no rationale was provided. Critically, neither the December 2018 or the November 2019 VA examiner provided an opinion as to whether the Veteran's service-connected deviated septum is either the proximate cause of his current sleep apnea or aggravated his sleep apnea. These inadequacies represent pre-decisional duty to assist errors that must be corrected on remand. 38 C.F. R. § 20.802. The Board recognizes that the Veteran provided a private nexus statement regarding his sleep apnea and the relationship between the onset of tinnitus and sleep apnea. However, the Board is precluded from considering this evidence. 38 C.F.R. § 20.302. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his current low back disability. The claims file should be made available to and reviewed by the examiner. Following a complete review of the Veteran's claims file and examination of the Veteran, the examiner is asked to address the following: (a.) For any diagnosed low back disability, to include myofascial pain syndrome, please opine whether it is at least likely as not (50 percent or greater probability) that such disability is due to the cumulative impact of the Veteran standing and marching for long periods of time in bootcamp while wearing body armor and his reported 10-to-20-mile hikes in infantry training while wearing 60 to 80 pounds of gear. In answering this question, please address the Veteran's statement (See October 2020 Board Hearing Transcript at 9) that his back pain began in service and continued to the present, the complaints of back pain in March 2016 prior to the January 2017 motor vehicle accident and discuss whether his statements are medically consistent with his current diagnosis. A complete rationale must be provided for all opinions rendered. If it is not possible to provide the requested opinion without resorting to speculation, please state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts); in the record (additional facts are required); or in your own knowledge or training. 2. Then schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorder, to include generalized anxiety disorder. The examiner should review the entire claims file, including a copy of this remand. All necessary tests and studies should be conducted, and all findings reported in detail. (a.) The examiner should then opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current psychiatric disability had its onset during his active-duty service. In answering this question, the examiner is asked to address the following: 1. Private treatment records demonstrating the Veteran was diagnosed by a medical doctor with generalized anxiety disorder in September 2012, the month after he was discharged from active-duty; 2. the Veteran's October 2020 testimony that he began to experience symptoms of anxiety while still on active duty (See October 2020 Board Hearing Transcript at 5); 3. the January 2021 lay statement from H.A. that the Veteran expressed concerns about his mental health in 2010. A complete rationale must be provided for all opinions rendered. If it is not possible to provide the requested opinion without resorting to speculation, please state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts); in the record (additional facts are required); or in your own knowledge or training. 3. Then refer the claims file to an examiner other than the December 2018 and November 2019 VA examiners for the preparation of an addendum opinion. No additional examination is necessary unless the examiner determines otherwise. The entire claims file must be made available to and reviewed by the examiner. Following a review of the entire claims file, to include all lay and medical evidence, the examiner should opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed sleep apnea: (a.) had its onset during his active-duty service or is a progression of the symptoms noted in the Veteran's STRs to include the April 2016 notation of sleep apnea symptoms, the symptoms reported on the separation report of medical history, or the symptoms noted during the in-service July 2012 sleep study; or (b.) is proximately due to the Veteran's service-connected deviated septum; or (c.) has been aggravated (worsened) by the Veteran's service-connected deviated septum. (Continued on the next page) In addressing questions (ii) and (iii) the examiner should note that two separate opinions are required: one for proximate causation and one for aggravation for the primary disability hypertension. Additionally, the examiner should note that the primary (deviated septum) disability noted above need not be service-connected, or even diagnosed, at the time sleep apnea is incurred and reliance on this fact will render the opinion inadequate. A complete rationale must be provided for all opinions expressed. If an opinion cannot be provided without resort to speculation, the examiner must so state and then provide a rationale for why the requested opinion could not be provided without resorting to speculation. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.