Citation Nr: 21015047 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-32 820 DATE: March 16, 2021 ORDER New and material evidence having been received, the request to reopen the previously denied claim of service connection for right ankle condition is granted. New and material evidence having been received, the request to reopen the previously denied claim of service connection for left wrist condition is granted. New and material evidence having been received, the request to reopen the previously denied claim of service connection a low back condition is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a left wrist condition is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A November 2012 rating decision that denied service connection for a right ankle condition, a left wrist condition, and a low back condition became final when the Veteran did not appeal the denial within one year. 2. With regard to the claim of service connection for a right ankle condition, new and material evidence was received in December 2017 in the form of a diagnosis of right ankle strain and right calcaneal spur, which was new because the Veteran did not have a prior diagnosis of a right ankle condition, and material because it was evidence of a current disability. 3. With regard to the claim of service connection for a left wrist condition, new and material evidence was received in June 2020 in the form of the Veteran’s testimony that he was unable to hold a glass of water with his left hand, which was new because it was not previously on record and material because it was evidence of a current disability. 4. With regard to the Veteran’s claim of service connection for a low back condition, new and material evidence was received in August 2014 in the form of a diagnosis of lumbosacral strain which was new because a diagnosis of a low back condition was not of record and material because it was evidence of a current disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the previously denied claim of service connection for a right ankle condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received to reopen the previously denied claim of service connection for a left wrist condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen the previously denied claim of service connection for a low back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1994 to July 1998, and from January 2004 to April 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision from the Los Angeles, California Regional Office (RO). In June 2020, the Veteran appeared before the undersigned Veterans Law Judge at a hearing. A transcript of the hearing has been associated with the electronic file. In July 2020, the Veteran requested a 30-day extension to submit additional evidence, which was granted for good cause in August 2020. Since the extension period has expired, the Veteran’s claims are now ready for adjudication. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).   1. New and material evidence having been received, the request to reopen the previously denied claim of service connection for right ankle condition is granted. In March 2010, the Veteran applied for service connection for a right ankle condition. See VA 221-526 received 3/19/2020. The claim was denied in a November 2012 rating decision, to include for lack of a current disability, which became final when the Veteran did not appeal the decision within a year. See Rating Decision received 11/06/2012. In December 2017, new and material was received in the form of a diagnosis of right ankle strain and right calcaneal spur, which was new because the Veteran did not have a prior diagnosis of a right ankle condition, and material because it was evidence of a current disability. See C&P Exam received 12/30/2017 at page 3. 2. New and material evidence having been received, the request to reopen the previously denied claim of service connection for left wrist condition is granted. In March 2010, the Veteran applied for service connection for a left wrist condition. See VA 221-526 received 3/19/2020. The claim was denied in a November 2012 rating decision, to include for lack of a current disability, which became final when the Veteran did not appeal the decision within a year. See Rating Decision received 11/06/2012. In June 2020, the Veteran testified at a Board hearing that he was unable to hold a glass of water with his left hand, which was new because it was not previously on record and material because it was evidence of a current disability. 3. New and material evidence having been received, the request to reopen the previously denied claim of service connection a low back condition is granted. In March 2010, the Veteran applied for service connection for a low back condition. See VA 221-526 received 3/19/2020. The claim was denied in a November 2012 rating decision, to include for lack of a current disability, which became final when the Veteran did not appeal the decision within a year. See Rating Decision received 11/06/2012. In August 2014, new and material evidence was received in the form of a diagnosis of lumbosacral strain, which was new because a diagnosis of a low back condition was not of record and material because it was evidence of a current disability. See Capri received 8/25/2014 at page 16. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran was diagnosed with obstructive sleep apnea (OSA) in October 2014. See Capri received 5/06/2020 at page 16. The Veteran contends that his sleep apnea is due to his service-connected PTSD. See Form 9 received 6/12/2017 at page 2. The Board finds that a remand for a VA examination and medical opinion is warranted. Although a private medical opinion and disability and benefits questionnaire is on the record, the Board finds that the medical opinion of physician’s assistant, H.M.C, is not supported with an adequate rationale. Specifically, H.M.C. states that the Veteran’s OSA is aggravated by the Veteran’s service-connected asthma, PTSD with Major Depression, and orthopedic conditions. However, in support of this opinion she cites articles that discuss the correlation between the conditions and not medical findings that support aggravation. Relatedly, H.M.C. opines that the Veteran’s increasing weight gain and worsened morbid obesity likely contributed to the development of his OSA. She links the Veteran’s morbid obesity to his PTSD and orthopedic conditions but only makes a conclusionary statement that the link is “clear”. See VA Examination received 3/27/2020 at page 7. Accordingly, the Board will remand for a VA examination and medical opinion as more information is needed to decide on the claim. 2. Entitlement to a left wrist condition is remanded. The Veteran contents that he has a current left wrist condition that was incurred during his active duty service. See Form 9 received 6/12/2017 at page 2. A review of the record shows that the Veteran was last provided with a VA examination in August 2014, wherein the examiner opined that the Veteran did not have a current wrist condition. See Capri received 8/25/2014 at page 42. At the 2020 hearing, the Veteran testified that his wrists swell, and he has to pop them in order to use them. See Hearing Transcript received 6/23/2020 at page 16. Further, the Veteran testified that he is unable to hold a glass of water with his left hand because it would fall. Id. at page 17. Given the Veteran’s testimony, the Board finds that a new VA examination and medical opinion is warranted to see if the functionally impacts earning capacity . 3. Entitlement to service connection for a right ankle condition is remanded. The Veteran contends that he has a right ankle condition that was incurred during his active duty. See Form 9 received 6/12/2017 at page 2. The Veteran testified that he had multiple injuries to his right ankle during active service. Specifically, in October 1994 during bootcamp when he was diagnosed with cellulitis; in April 1997 during a football game; and when stationed in Okinawa and twisted his right ankle when it got caught between two rocks. See Hearing transcript received 6/23/2020 at pages 12-14.   The Veteran was provided another VA examination in August 2014. At the August 2014 examination, the Veteran reported that the onset of his right ankle condition was during his reserve service when he sprained his right ankle during a weekend drill. See Capri received 8/25/2014. Since the Veteran’s reserve records have not been associated with the claims file, the Board will remand this issue to attempt to associate these relevant records with the claims file. 4. Entitlement to service connection for a low back condition is remanded. The Veteran contends that he injured his back while on active duty service when he carried full combat loads on weekly field operations. See Correspondence received 9/15/2020 at page 2. He claims to have further injured his back while on active duty in March 2004 when he was moving furniture. Id. The Veteran was last provided an VA examination in August 2014. At that time, he was diagnosed with lumbosacral strain. In the disability and benefits questionnaire (DBQ), the August 2014 examiner indicated that the Veteran did not use any assistive devices. See Capri received 8/25/2014 at page 21. In a September 2020 Correspondence, the Veteran stated that he used a walker and needed assistance to take showers due to his back condition. See Correspondence received 9/15/2020 at page 2. Additionally, the examiner’s nexus statement does not address whether his current back disability is related to his dues while on active service. At the June 2020 hearing, the Veteran’s representative requested a new VA examination and medical opinion. See Hearing Transcript received 6/23/2020 at page 10. The Board agrees, since the Veteran reports a more debilitating condition than was assessed when he was examined in August 2014 and finds a direct nexus opinion would be useful to adjudicate this matter. 5. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues of service connection for sleep apnea, left wrist condition, right ankle condition and lower back condition could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). These matters are REMANDED for the following actions: 1. Take appropriate action to obtain the Veteran's Reserves treatment and personnel records from February 1999, to include records of his routine physical examinations. 2. After completing #1, schedule the Veteran for a VA examination for his sleep apnea. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a.) Is the Veteran’s sleep apnea at least as likely as not related to service? See Correspondence received 9/15/2020. (b.) If no to question (a), whether the obesity/weight gain as a result of the service-connected disabilities was a substantial factor in causing his OSA; (c.) Whether his OSA would not have occurred but for the obesity/weight gain caused by the service-connected disabilities. (d.) If no to the above questions (b)-(c), is it at least as likely as not (50 percent or greater probability) that his OSA was either 1) proximately due to OR 2) aggravated by any service-connected disability, to include PTSD and/or orthopedic disabilities. In arriving at the opinion on the OSA and weight gain/obesity, inform the examiner that all lay evidence must be considered, including any articles submitted by the Veteran and his statements. Inform the examiner further that, for VA purposes, obesity is not a disease or disability for which service connection may be granted, but it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an “intermediate step” between either any or all of the Veteran’s service-connected disabilities and his OSA, the examiner is to fully answer the above questions to assist the Board with adjudication of these matters. 3. Schedule the Veteran for a VA examination for his left wrist condition. The examiner must review the claims file. Please complete the “Functional Impact” section of the report of examination If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below.   The examiner is asked to provide a response to the following: Is the Veteran’s left wrist condition at least as likely as not related to service? See Correspondence received 9/15/2020. 4. Schedule the Veteran for a VA examination for his right ankle condition. The examiner must review the claims file. Please complete the “Functional Impact” section of the report of examination If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a) Is the Veteran’s right ankle condition at least as likely as not related to service? See Correspondence received 9/15/2020. (b) Is right ankle condition at least as likely as not proximately due to any service-connected disabilities? (c) Is right ankle condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by any service-connected disability? 5. Schedule the Veteran for a VA examination for his low back condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a) Is the Veteran’s low back condition at least as likely as not related to service? See Correspondence received 9/15/2020. (b) Is low back condition at least as likely as not proximately due to any service-connected disabilities? (c) Is low back condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by any service-connected disability? 6. Inform EACH of the above examiners that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training).   7. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of a TDIU. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.