Citation Nr: 21025469 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 20-16 853 DATE: April 28, 2021 ORDER New and material evidence having been received, the claim to reopen the service connection claim for obstructive sleep apnea (OSA) is granted. New and material evidence having been received, the claim to reopen the service connection claim for heart disease is granted. New and material evidence having been received, the claim to reopen the service connection claim for a left knee disability is granted. New and material evidence having been received, the claim to reopen the service connection claim for a right hip disability is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for residuals of an injury of the right foot, status post transverse fracture is remanded. Entitlement to service connection for OSA is remanded. Entitlement to service connection for heart disease is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to a total rating by reason of individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The claims for service connection for OSA, heart disease, left knee, and right hip disabilities were denied in a May 2012 rating decision and notification letter. Although the Veteran initiated an appeal of this decision, he did not perfect it with a timely appeal. 2. Since the May 2012 decision denying service connection for OSA, heart disease, left knee, and right hip disabilities, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The additional evidence received subsequent to the May 2012 rating decision and notification letter that denied service connection for OSA is new and material; thus, service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The additional evidence received subsequent to the May 2012 rating decision and notification letter that denied service connection for heart disease is new and material; thus, service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The additional evidence received subsequent to the May 2012 rating decision that denied service connection for a left knee disability is new and material; thus, service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The additional evidence received subsequent to the May 2012 rating decision and notification letter that denied service connection for a right hip disability is new and material; thus, service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to January 1969. In January 2021, a videoconference board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Whether new and material evidence has been received to reopen the claims of service connection for OSA, heart disease, a left knee disability, and a right hip disability The claims for service connection for OSA, heart disease, a left knee disorder and a right hip disorder were previously denied by the Regional Office (RO) in a May 2012 rating decision and notification letter. The Veteran evidenced disagreement with this decision and a Statement of the Case (SOC) was issued in June 2014. The Veteran, however, did not submit a timely appeal. See October 2014 VA Form 9, substantive appeal. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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). 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, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask 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. 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, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence of record at the time of the May 2012 rating decision that denied service connection for OSA, heart disease, right hip and left knee disorders included the Veteran’s service treatment records (STRs), which show no complaints or manifestations of OSA, heart disease, or right hip impairment. The STRs do show, however, that the Veteran was treated for a left knee contusion in June 1966 and was noted in February 1968 to have had chronic and repeated trauma to the left knee. On examination for separation from service in December 1968 it was noted that the Veteran’s left knee was swollen in the past, “no trouble now.” Medical records received from the Social Security Administration (SSA) include references to the Veteran having been diagnosed with OSA and had right hip impairment. A May 2010 private physician statement indicated that the Veteran was being treated for complaints of chest pain and a January 2011 report noted that the Veteran had undergone a total knee replacement of the left knee that month. A VA examination in April 2012 included a negative nexus opinion regarding any relationship between the Veteran’s current left knee disorder and complaints in service. By rating decision dated in February 2020, service connection was granted for posttraumatic stress disorder (PTSD). Evidence received subsequent to the May 2012 rating decision includes records of VA medical treatment and the testimony given by the Veteran at his hearing in January 2021. Pertinent testimony included assertions that his OSA was the result of service in Libya where he was exposed to significant sand and dust, that his heart disease is secondary to his OSA and that his right foot and left knee disabilities were sustained at the same time as the right foot injury for which service connection has already been established. It was also contended that the Veteran’s OSA was related to his service-connected PTSD and that his right hip and left knee disorders should be considered as secondary his service-connected right foot disorder. It was also asserted that the VA examination report that included a negative nexus opinion was not sufficient for rating purposes. For the purpose of determining whether evidence is new and material to reopen a claim, the credibility of the evidence is to be presumed. Justus, 3 Vet. App. at 510. In addition, where there is an intervening change in law or regulation that creates a new basis of entitlement to the benefit, the claim may be reviewed on a de novo basis. Spencer v. Brown, 4 Vet. App. 283 (1993). The Board finds that the Veteran’s testimony and the establishment of service connection for PTSD constitutes new and material evidence such that the claim may be reopened. To this extent, the appeal is allowed. REASONS FOR REMAND Entitlement to service connection for OSA, heart disease, left knee and right hip disabilities is remanded. Having decided that the claims are reopened, as noted, the Board must now consider all the evidence on file. Review of the record shows that the Veteran had numerous complaints of left knee pain documented on examination for separation from service, which were not considered by the VA examiner at the time the April 2012 opinion was rendered. Neither did the examiner take the Veteran’s lay statements regarding left knee pain since service into consideration. Moreover, examinations taking the Veteran’s lay statements regarding the onset of his right hip and OSA have not been considered and the contentions regarding secondary service connection have not been evaluated. For these reasons, the Board finds that additional medical examinations are warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to an increased rating in excess of 10 percent for residuals of an injury of the right foot, status post transverse fracture is remanded. During the Board hearing in January 2021, the Veteran testified about symptoms in his right foot that he asserted were not properly evaluated at the time of the May 2019 VA examination. Where the evidence of record does not reflect the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under these circumstances, the Board finds that an additional examination is warranted in this case. Entitlement to TDIU is remanded. Review of the record, including the Veteran’s testimony at the Board hearing in January 2021, shows that the Veteran retired early from his employment. It has been contended that this was the result of his service-connected disabilities. Thus, the evidence of record, to include the medical evidence, reasonable raises a claim for entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). A remand is required prior to adjudication of the claim for a TDIU as the RO has not yet addressed the issue of entitlement to a TDIU in the first instance. The matters are REMANDED for the following actions: 1. Schedule the Veteran for VA examinations for OSA, heart disease, left knee, and right hip disabilities. 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 opinion(s) below. The examiners are asked to provide a response to the following: Are the OSA, right hip and left knee disabilities at least as likely as not related to service, including complaints of exposure to sand and dust while stationed in Libya; left knee disability noted in 1966, 1968, and on separation from service; and contentions of right hip and left knee disabilities that could be related to the injury sustained to the right foot in service? Provide a rationale to support the opinions. Are the right hip and left knee disabilities at least as likely as not proximately due to or at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected right foot disability? Is the Veteran’s OSA at least as likely as not proximately due to or at least as likely as not aggravated, i.e. worsened beyond its natural progression, by service-connected PTSD? (Continued on the next page)   If service connection is established for OSA, an opinion should be requested as to whether heart disease is at least as likely as not proximately due to or at least as likely as not aggravated by the OSA. 2. Ask the Veteran to complete a TDIU claim form and conduct any additional development deemed necessary to adjudicate this claim. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.