Citation Nr: 21021435 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-66 725 DATE: April 13, 2021 ORDER New and material evidence having been received, the claim to reopen the previously denied claim of entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), to exclude periods of temporary total disability ratings, is remanded. Entitlement to service connection for hepatitis C, to include as secondary to service-connected PTSD (claimed as alcohol and drug use disorder associated with military sexual trauma), is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, is remanded. FINDINGS OF FACT 1. In a May 2011 rating decision, the Regional Office (RO) denied entitlement to service connection for sleep apnea; the Veteran did not appeal the decision and it became final. 2. Evidence received subsequent to the May 2011 rating decision relates to an unestablished fact necessary to substantiate the claim; is not cumulative of the evidence previously of record; and raises a reasonable possibility of substantiating the claim of entitlement to service connection for sleep apnea. CONCLUSIONS OF LAW 1. The May 2011 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to February 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) RO in Montgomery, Alabama. In December 2015, the Veteran timely filed a notice of disagreement (NOD) and in August 2017 the RO issued a statement of the case (SOC). In October 2017 the Veteran perfected a substantive appeal and requested a hearing before a Veterans Law Judge (VLJ). In March 2021, the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of that proceeding will be associated with the record. Regarding the Veteran’s claim for entitlement to a higher disability rating for PTSD, the Board acknowledges that the Veteran has been assigned various temporary total evaluations pursuant to 38 C.F.R. § 4.29. In evaluating the appropriate rating for the period on appeal, the Board’s analysis will not address the periods where a temporary total rating was in effect. The Board also acknowledges that following a separate August 2020 AMA higher level review of a separate February 2020 rating decision, the Veteran then filed a VA Form 10182 NOD and selected the Hearing Review lane. Accordingly, as this separate appeal is part of the Appeals Modernization Act (AMA) appeals process, the Board will not address it herein. In addition, the Board recognizes that the Veteran’s service treatment records (STRs) are unavailable. See March 2011 VA Memo. In situations where STRs are unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran’s appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2020). 1. New and material evidence having been received, the claim to reopen the previously denied claim of entitlement to service connection for sleep apnea is granted. The Veteran is seeking service connection for sleep apnea. By way of history, in a May 2011 rating decision, the RO denied entitlement to service connection for sleep apnea because the Veteran’s service treatment records (STRs) were unavailable for review and there was no established nexus. The Veteran submitted a timely NOD and in December 2013, the RO issued a statement of the case (SOC). The Veteran did not initial an appeal, and new and material evidence was not received within one year of the rating decision’s issuance. The May 2011 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. In the November 2011 rating decision on appeal, the RO denied to reopen the Veteran’s claim based on no new and material evidence having been submitted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision makers. “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. 38 C.F.R. § 3.156(a). 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. Id. 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). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Board finds that new and material evidence has been received subsequent to the May 2011 rating decision, which denied service connection for sleep because of a lack of available STRs and a link to service. At the time of the rating decision, the evidence of record included VA treatment records, private treatment records, lay assertions, and the Veteran’s DD 214. Relevant evidence received more than one year since the May 2011 rating decision includes a lay assertion in the March 2021 Board hearing, which indicates a link between the Veteran’s currently diagnosed sleep apnea and service. This evidence satisfies the definition of new and material evidence, as it raises a reasonable possibility of substantiating the claim. This evidence was not of record at the time of the prior final denial and provides evidence towards substantiating the Veteran’s claim. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s previously denied claim of service connection for sleep apnea. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran is seeking service connection for sleep apnea. Specifically, he contends that he has experienced symptoms of sleep apnea, to include tiredness, weakness, and snoring, since service. See March 2021 Board Hearing Tr. As noted above, the Board has reopened the Veteran’s claim for service connection for sleep apnea upon a finding that new and material evidence has been received. However, the RO has not readjudicated the merits of the claim in the first instance. The Board must remand the claim so that this may be accomplished, and so that any necessary development may be accomplished, to include obtaining a VA examination and/or opinion, if necessary. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). 2. Entitlement to a disability rating in excess of 50 percent for PTSD, to exclude periods of temporary total disability ratings, is remanded. The Veteran is seeking a higher disability rating for his service-connected PTSD. Specifically, he contends that his disability is more severe than reflected by his currently assigned rating. See March 2021 Board Hearing Tr.; VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the Veteran that considers records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). A review of the claims file reveals that the Veteran was last afforded a VA examination for his PTSD in November 2015, over five years ago. The Veteran, asserts that, during the periods in which he is not assigned a temporary total disability rating, his PTSD is more disabling than reflected in his most recent VA examination. As such, a contemporary examination is necessary, and a remand is warranted. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). 3. Entitlement to service connection for hepatitis C, to include as secondary to service-connected PTSD (claimed as alcohol and drug use disorder associated with military sexual trauma), is remanded. 4. Entitlement to service connection for a back disability is remanded. 5. Entitlement to service connection for a bilateral foot disability is remanded. As an initial matter, the Board recognizes that the Veteran has not been afforded VA examinations regarding his, hepatitis C, back disability, or bilateral foot disability. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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) insufficient competent medical evidence on file for VA to make a decision on the claim. The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and service, for the purpose of determining whether an examination is warranted, is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Service connection for hepatitis C Regarding the Veteran’s claim for service connection for hepatitis C, the Veteran contends that his disability is related to using needles during his last tour of service and that he was diagnosed shortly after leaving service. He asserts that his inservice and post service alcohol and drug abuse was his way of managing the effects of his inservice military sexual trauma. See March 2021 Board Hearing Tr.; May 2011 Rating Decision (granting service connection for PTSD, claimed as drug and alcohol abuse/personal sexual trauma). In this case, the Veteran has reported needle use during service, as well as a military sexual trauma and resulting service-connected PTSD, which he contends has caused his hepatitis C. While there are no service treatment records to review, the Veteran has provided relevant reports of in-service injuries. As the Veteran is competent to describe continuing symptomatology and report on in-service injuries, this evidence surpasses the low threshold established by Locklear and McLendon. A remand is warranted in order to afford the Veteran a VA examination and obtain medical opinions related to his hepatitis C disability. Service connection for a back disability The Veteran is seeking service connection for a back disability. Specifically, he contends that his currently diagnosed herniated disk, and back pain, was incurred during service because he was involved in a motor vehicle accident in Hanau, Germany. He reports that went to the army hospital and was given medication and that he has continually experienced pain since service. See March 2021 Board Hearing Tr.; see also December 2020 Private Treatment Record (Veteran reported experiencing back pain for the last 30-35 years). In this case, the Veteran has reported an in-service motor vehicle accident, which he contends has caused his back disability. While there are no service treatment records to review, the Veteran has provided relevant reports of an in-service injury. As the Veteran is competent to describe continuing symptomatology and report on in-service injuries, this evidence surpasses the low threshold established by Locklear, supra and McLendon, supra. A remand is warranted in order to afford the Veteran a VA examination and obtain medical opinions related to his back disability. Service connection for a bilateral foot disability The Veteran is seeking service connection for a bilateral foot disability (flat feet). Specifically, he contends that his disability is related to his inservice military occupational specialty (MOS) and is due to running with a toolbox during service. He asserts that his pain has been continual since service. See March 2021 Board Hearing Tr. In this case, the Veteran has reported an in-service injuries associated with his MOS, which he contends has caused his bilateral foot pain. While there are no service treatment records to review, the Veteran has provided relevant reports of an in-service injury. As the Veteran is competent to describe continuing symptomatology and report on in-service injuries, this evidence surpasses the low threshold established by Locklear, supra and McLendon, supra. A remand is warranted in order to afford the Veteran a VA examination and obtain medical opinions related to his bilateral foot disability. 6. Entitlement to a TDIU due to service-connected disabilities, is remanded. The Veteran is seeking a TDIU. Specifically, he contends that his alcohol and drug use, related to his PTSD, prevented him from working. As noted above, the Board is remanding the Veteran’s claim for a higher disability for PTSD. The outcome of this remand could affect the outcome of the TDIU claim. Therefore, the claims are inextricably intertwined, and remand of the Veteran’s claim for entitlement to a TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Adjudicate the Veteran’s claim for service connection sleep apnea. In doing so, because the Veteran’s STRs are not available due to no fault of the Veteran, the AOJ should consider the Veteran’s competent lay statements. Any tests and opinions deemed necessary should be conducted. 2. Schedule the Veteran for a VA examination by an appropriately qualified VA health care professional to determine the nature and severity of the Veteran’s PTSD, throughout the appeal period, to exclude periods where the Veteran is in receipt of a temporary total disability rating. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. In doing so, the examiner should please have the Veteran describe his symptoms during periods of recovery when he does not require hospitalization (i.e. for the periods on appeal prior to June 11, 2019; from August 1, 2019 to December 18, 2020; and beginning March 1, 2020). The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. 3. Schedule the Veteran for a VA examination by an appropriately qualified VA health care professional to determine the nature and etiology of his hepatitis C disability. The electronic claims folder, including a copy of this remand, should be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. The examiner should: (a) Determine whether it is at least as likely as not (50 percent probability or greater) the Veteran’s hepatitis C had its onset during active service or is related to any in-service disease, event, or injury. (b) Determine whether it is at least as likely as not (50 percent probability or greater) the Veteran’s hepatitis C was (i) caused by or (ii) aggravated beyond natural progression by his service-connected PSTD. In doing so, the examiner should consider the Veteran’s competent lay assertions that he used needles during service to cope with his military sexual trauma. See March 2021 Board Hearing Tr. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. The Board acknowledges that the Veteran’s STRs are not available due to no fault of the Veteran. The clinician should consider the Veteran’s competent lay statements to provide the requested opinions. It is not sufficient to simply state that STRs are unavailable. 4. Schedule the Veteran for a VA examination by an appropriately qualified VA health care professional to determine the nature and etiology of any of diagnosed back disability, to include a herniated disk. The electronic claims folder, including a copy of this remand, should be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. The examiner should: Determine whether it is at least as likely as not (50 percent probability or greater) that any back disability present at any point during the appeal period had its onset during active service or is related to any in-service disease, event, or injury. In doing so, the examiner should consider the Veteran’s competent assertions regarding an inservice motor vehicle accident and pain since service. See March 2021 Board Hearing Tr. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. The Board acknowledges that the Veteran’s STRs are not available due to no fault of the Veteran. The clinician should consider the Veteran’s competent lay statements to provide the requested opinion. It is not sufficient to simply state that STRs are unavailable. 5. Schedule the Veteran for a VA examination by an appropriately qualified VA health care professional to determine the nature and etiology of any of diagnosed bilateral foot disability. The electronic claims folder, including a copy of this remand, should be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. The examiner should: (a) Clearly identify all current foot disabilities. In doing so, the examiner is informed that for VA compensation purposes, pain alone, even in the absence of a diagnosed condition, may be considered a disability when it results in functional loss. The Veteran, as a layperson, is considered competent to report on his own history of pain as he has experienced it. If the examiner determines that the Veteran experiences pain that does not result in functional loss, the examiner should clearly explain why that is the case. If the examiner determines that the Veteran’s medical history contradicts the Veteran’s statements regarding his symptomatology, the examiner should clearly explain why that is the case. (b) Determine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed foot disability present at any point during the appeal period had its onset during active service or is related to any in-service disease, event, or injury. In doing so, the examiner should consider the Veteran’s competent assertions regarding running with a toolbox due to his MOS and pain since service. See March 2021 Board Hearing Tr. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. The Board acknowledges that the Veteran’s STRs are not available due to no fault of the Veteran. The clinician should consider the Veteran’s competent lay statements to provide the requested opinion. It is not sufficient to simply state that STRs are unavailable. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for an increased disability rating for PTSD, and the claims for service connection for hepatitis C, a back disability, and a bilateral foot disability. 7. After development and adjudication of the claims herein, and any additional notification and/or development deemed warranted, readjudicate the Veteran’s claim for a TDIU. If necessary, refer the claim to VA’s Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). (Continued on the next page)   8. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.