Citation Nr: 21026425 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-52 361 DATE: May 3, 2021 ORDER The petition to reopen the previously denied claim for service connection for a lumbosacral spine disability is granted. REMANDED Entitlement to service connection for a lumbosacral spine disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to service-connected bronchial asthma, is remanded. FINDING OF FACT An unappealed December 1988 rating decision denied service connection for a low back disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The December 1988 rating decision denying the claim for service connection for a low back disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1984 to March 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2017 and February 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. The undersigned VLJ held the record open for a 30-day period following the hearing to allow for the submission of supporting evidence. Thereafter, no additional evidence was received by VA. Lastly, at the June 2020 Board hearing, the Veteran's representative expressed his intention to challenge the competency of the clinician who provided the February 2018 VA medical opinion addressing OSA. See Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). As the Board has found the medical opinion inadequate, this challenge is moot. Whether new and material evidence has been submitted to reopen the previously denied claim for entitlement to service connection for a low back disability. The Board concludes that the December 1988 rating decision denying the claim for service connection for low back pain is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. In a December 1988 rating decision, service connection was denied for low back pain. The agency of original jurisdiction (AOJ) concluded that the evidence did not show that the Veteran had a current diagnosis of a low back disability that began during service. VA notified the Veteran of this decision in a December 1988 letter and how to appeal. VA received no response to this letter, to include an appeal or new and material evidence prior to expiration of the appeal period. As such, the December 1988 rating decision became final. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the AOJ found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Evidence associated with the claims file since the prior final disallowance includes new and material evidence. Specifically, the Veteran provided testimony during his June 2020 Board hearing that his low back pain began during service as a result of an injury in which he lifted a two-and-a half ton hub into a vat to clean. The Veteran testified that he has experienced continuous and progressively worse symptoms since the initial lifting injury. He testified that he sought treatment from a chiropractor for his low back pain after service discharge from approximately 1989 to 1995. The Veteran also indicated that he is currently treated at the VA Medical Center in Muskogee for his current low back condition which involves bulging discs, bone spurs and arthritis. In addition, VA treatment records recently associated with the claims file show a current diagnosis of lumbago with sciatica which the Veteran has treated with a TENS unit. Lastly, a December 2016 VA emergency department note contains an x-ray of the lumbosacral spine showing mild degenerative changes. The evidence discussed above was not considered at the time of the prior final disallowance; hence, it is new. Further, this evidence cures a prior evidentiary defect, specifically with respect to a current diagnosis of a low back disability; hence, it is material. Therefore, the recent evidentiary submissions are both new and material. Accordingly, the petition to reopen the previously denied claim for a low back disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbosacral spine disability is remanded. The Veteran contends that he developed a low back disability as a result of an in-service injury when he lifted a two-and-a half ton hub into a vat to clean. The Veteran's military occupational specialty (MOS) was light wheel vehicle mechanic. To ensure that VA has met its duty to assist, remand is necessary to afford the Veteran a VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As discussed above, the Veteran testified that he injured his low back during service while his duties as a light wheel vehicle mechanic. He indicated that he has experienced continuous low back symptoms since the initial in-service injury and sought treatment from a chiropractor immediately after service separation. Moreover, recent VA treatment records associated with the claims file reflect the Veteran is currently treated for low back symptoms such as pain and muscle spasms and is diagnosed as having lumbago for which he is treated with a TENS unit. There is also x-ray evidence of degenerative changes in the lumbosacral spine. Although the available service treatment records (STRs) do not reflect any complaints, treatment or diagnosis related to the low back, the record reflects the Veteran filed a claim for service connection for low back pain within one year of his separation from service. During a VA examination conducted in July 1988, the Veteran was noted to have a history of low back complaints stemming from an injury while doing some physical labor. The Veteran reported that since that injury, he experienced occasional discomfort in his back. VA has not obtained a medical opinion on whether the Veteran's current low back condition had its onset in service or is etiologically related to an in-service injury or disease, and, the Board finds that a VA examination is necessary to adjudicate the matter. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the facts above and given the low bar set to trigger VA's duty to obtain a VA examination, the Board finds that the Veteran's lay statements, coupled with his report of back pain caused by an in-service injury which he made shortly after service discharge, are enough to meet that low bar. Id. Therefore, the Veteran should be afforded an opportunity to present for a VA examination to determine the nature and etiology of his low back condition, and whether any such condition is related to in-service injury or disease. 2. Entitlement to service connection for OSA is remanded. The Veteran contends that his OSA is proximately due to and aggravated by his service-connected bronchial asthma. See Hearing Transcript at 12-14 (June 2020). The Board finds that remand is necessary to obtain an adequate addendum medical opinion addressing secondary service connection. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). To establish a claim for entitlement to secondary service connection under 38 C.F.R. § 3.310, a veteran must have (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or, aggravated beyond its natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In February 2018, the Veteran was afforded a VA sleep apnea examination and was found to have OSA confirmed by a private sleep study performed in December 2017. The medical opinion concluded that the Veteran's OSA is less likely than not proximately due to or the result of the Veteran's service-connected bronchial asthma. The supporting rationale for the conclusion was that sleep apnea is due to obstruction in the upper airway rather than the lower airways that are affected by asthma. The opinion further states that asthma is a distinctly different pathology that involves immune mediated reactive lower airways compared to OSA which is caused by a strictly mechanical obstruction of the upper airway. The Board finds the medical opinion inadequate because it does not fully address the legal criteria to establish service connection on a secondary basis. Here, the medical opinion provides a rationale addressing the causal relationship between OSA and asthma but does not provide any supporting rationale as to why the Veteran's OSA was not worsened beyond its natural progression by his asthma. In order to be adequate, a medical opinion assessing secondary service connection must address both causation and aggravation. This means that the requested medical opinion must assess not only whether the claimed disability was caused by the service-connected disability, but also if it was aggravated by that service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136 (2012). Further, it is noted that separate findings and rationales must be provided as to causation and aggravation as they are separate concepts. See Atencio v. O'Rourke, 30 Vet. App. 74, 8991 (2018) (holding that a medical opinion was inadequate when it was unclear whether the examiner had clearly provided a rationale that dealt with causation and aggravation as independent concepts). Accordingly, a new medical opinion is warranted that adequately addresses the aggravation prong of secondary service connection. The Board acknowledges the favorable medical opinion submitted by the Veteran's VA primary care physician, Dr. Thomas Spencer, in October 2018. Dr. Spencer opined that "There is an abundance of literature and research showing that asthma increases one's chances of developing obstructive sleep apnea and in my opinion this Veteran's asthma has set him up for obstructive sleep apnea." The Board notes that the medical opinion is not accompanied by any medical literature and research. The Board finds the opinion is inadequate because it is conclusory in nature and makes a general reference to medical literature and research without providing any reasoned medical rationale relating the facts of the Veteran's case to any specific medical literature and research. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate). Further, the opinion does not reflect a conclusion or reasoned medical rationale on the question of whether the Veteran's OSA is aggravated beyond its natural progression by service-connected bronchial asthma. See Allen v. Brown, 7 Vet. App. 439 (1995). As such, the Board finds the opinion inadequate to support a grant of the Veteran's claim. Again, to the extent that during the Board hearing the Veteran's representative questioned the credentials of the VA examiner who provided the February 2018 VA medical opinion, as opposed to those of Dr. Spencer, a medical doctor, as the Board has found the February 2018 VA medical opinion inadequate, this challenge is moot. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 2019 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his lumbar spine disability. The claims file, including a complete copy of this REMAND, should be made available to the clinician and reviewed. The medical opinion should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions; and (iii) medical evidence of record to include evidence that is favorable and unfavorable. The clinician must address the following: (a.) Based on review of the record and interview with the Veteran, detail his reported low back symptoms, including the nature, onset, progression and severity. If any medical history provided by the Veteran as to onset, progression, and severity of symptoms is rejected, then a full explanation for such is required. The examiner is not required to accept the Veteran's theory that his low back symptoms first manifested during service and persisted following separation from service if this is incongruous with the record; however, the examiner is required to fully explain why he or she disagrees with the Veteran's theory of onset/causation. (b.) Whether it is at least as likely as not any low back disability (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease, including but not limited to his report of injury from lifting a two-and-a half ton hub into a cleaning vat while performing duties as a light wheel vehicle mechanic. Consider and discuss the relevant evidence of record, to include at a minimum: (i) The Veteran's assertion that his low back symptoms and disability were caused by an injury from lifting a two-and-a half ton hub into a vat for cleaning in 1987; (ii) lay statements and hearing testimony discussing low back pain which began during and persisted after separation; and (iii) the July 1988 VA examination report, conducted within one year of service separation, showing the Veteran reported that he initially hurt his low back in service while performing physical labor and experienced occasional discomfort in his back since that time. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. NOTE (2): The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 3. Obtain an addendum medical opinion from an appropriate specialist regarding the etiology of the Veteran's obstructive sleep apnea. The claims file, including a complete copy of this REMAND, should be made available to the clinician and reviewed. The medical opinion should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions; (iii) medical evidence of record to include evidence that is favorable and unfavorable; and (iv) Dr. Spencer's October 2018 medical opinion that the Veteran's service-connected asthma increased his chances for developing obstructive sleep apnea. The clinician must opine whether it is at least as likely not the Veteran's obstructive sleep apnea is (1) proximately due to (caused by) or (2) worsened beyond its natural progression (aggravated by) his service-connected bronchial asthma, to include the use of a CPAP machine for the treatment of his sleep apnea. Provide a rationale that deals with causation and aggravation as independent concepts. The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.