Citation Nr: 21014417 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-00 398 DATE: March 12, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for degenerative disc disease of the low back (low back disability) is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to Agent Orange exposure and/or service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for low back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed August 2013 rating decision, the regional office (RO) denied service connection claim for low back disability. 2. The evidence received since the August 2013 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for low back disability. CONCLUSIONS OF LAW 1. The August 2013 rating decision, denying service connection for low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the August 2013 rating decision is new and material and the claim for service connection for low back disability, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1966 to December 1968. The Veteran’s service awards include the Purple Heart and Combat Infantryman Badge. This matter came before the Board of Veterans’ Appeals (Board) on appeal from September 2014, February 2016 and September 2016 rating decisions issued by the Department of Veterans Affairs (VA) RO. On December 2016 VA Form 9, the Veteran requested a Board hearing. The hearing was scheduled for June 2019. The Veteran withdrew his request in May 2019. As such, the hearing request associated with this appeal is deemed withdrawn. See 38 C.F.R. § 20.704(e). The Board remanded the appeal in April 2019 to the agency of original jurisdiction (AOJ) for further development. While the Board regrets the additional delay, a remand is necessary to ensure that the Veteran is afforded due process. Claims to reopen. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, supra. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for low back disability was denied in an August 2013 rating decision on the basis that there was no nexus to service. The Veteran did not initiate an appeal of that decision and thus, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. No evidence was constructively or physically of record within one year of the August 2013 determination. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). The Veteran submitted a petition to reopen his claim in July 2016. The appeal stems from this claim. At the time of the August 2013 rating decision, the pertinent evidence of record included service treatment records (STRs) and VA treatment records. Since the August 2013 rating decision, VA treatment records, private treatment records, a November 2016 VA opinion, and statements from the Veteran and his representative were added to the record. As this evidence was not before VA or considered in the prior denial, it is new. This evidence is also material as it relates to an unestablished fact necessary to substantiate the claim, namely, evidence of a diagnosed low back disability and potential link between such disability and the Veteran’s active military service. Accordingly, new and material evidence has been received. The request to reopen the prior denial is granted. 38 C.F.R. § 3.156. To this limited extent only, the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to Agent Orange exposure and/or service-connected PTSD. The Veteran asserts that his sleep apnea is related to his active military service. Specifically, the Veteran claims that his sleep apnea is related to exposure to Agent Orange during his service in the Republic of Vietnam. Alternatively, the Veteran claims that his sleep apnea is secondary to his service-connected PTSD. The Board finds that a remand is needed to adequately address the Veteran’s claim. In this regard, pursuant to April 2019 Board remand, the Veteran was afforded a VA examination for his sleep apnea in April 2020. The examiner diagnosed the Veteran with obstructive sleep apnea. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was based on the fact that there is no evidence in the Veteran’s service treatment records (STRs) of related injuries, treatment, or complaints. The examiner added that there is no current acceptable, reliable anecdotal or scientific evidence-based medical literature to suggest a link between sleep apnea and the Veteran’s presumed exposure to Agent Orange. The Board finds this opinion inadequate because the examiner did not provide an explanation of etiology of the Veteran’s obstructive sleep apnea. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one). The examiner also did not provide a secondary opinion as to whether the Veteran’s service-connected PTSD caused or aggravated his obstructive sleep apnea. Accordingly, an addendum opinion is necessary. 2. Entitlement to service connection for low back disability. The Veteran asserts that service connection is warranted for his low back disability. He essentially maintains that he served as an infantryman and experienced back pain on patrol while in service. As with the sleep apnea claim, the Board finds that a remand is needed to adequately address the Veteran’s claim. The Veteran underwent a VA examination in November 2016. The examiner opined that the Veteran’s low back disability was less likely than not caused by or a result of his time in service. The examiner noted that the Veteran’s STRs are negative for any complaints or treatment of low back condition, or treatment with ASA (aspirin) and Darvon. The Board finds that the reviewing clinician’s rationale is inconsistent with evidence of record, as multiple STRs annotate the Veteran’s complaints of back pain and treatment with ASA (aspirin) and Darvon. See STRs from October 1967. The Board also notes that the Veteran served as a light weapons infantryman and was awarded the Purple Heart and CIB; thus, his lay statements are consistent with the circumstances, conditions, and hardships of such service. 38 U.S.C. § 1154(b). As noted, once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. See Barr, supra. Therefore, a remand is necessary to obtain an addendum medical opinion that addresses the Veteran’s STRs and his lay statements. 3. Entitlement to a TDIU. The Veteran asserts that his service-connected disabilities have rendered him unemployable.  See January 2014 VA Form 21-8940 (VA 21-8940); February 2014 VA Form 21-4192 (VA 21-4192). The issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to service connection for sleep apnea and low back disability, because the outcome of these claims may have a bearing on the Veteran’s employability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea had its onset in, or is otherwise related to, active service, to include exposure to Agent Orange. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea was caused or aggravated by his service-connected PTSD. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the obstructive sleep apnea disability prior to aggravation by the service-connected PTSD. A complete rationale for all opinions expressed and conclusions reached must be provided. 2. Obtain an addendum opinion regarding the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s low back disability had its onset in, or is otherwise related to, active service. In providing this opinion, the examiner must address all of the evidence of record, to include the Veteran’s complaints of back pain and treatment with ASA (aspirin) and Darvon in October 1967 STRs. The examiner must also address the Veteran’s lay contentions. A complete rationale for all opinions expressed and conclusions reached must be provided.   3. After adjudicating the appeal of the claim for entitlement to service connection for sleep apnea and a low back disability, readjudicate the claim of entitlement to a TDIU, considering any evidence received since the April 2020 statement of the case was issued. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.