Citation Nr: 21028594 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 19-37 905 DATE: May 11, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened. Entitlement to service connection for a bilateral hand disability is denied. Entitlement to an evaluation of prostate cancer in excess of 20 percent has been withdrawn. Entitlement to an evaluation of lumbago in excess of 10 percent from October 6, 2011 to November 15, 2019 has been withdrawn. Entitlement to an evaluation of lumbago in excess of 20 percent since November 15, 2019 has been withdrawn. Entitlement to service connection for degenerative arthritis of the right knee has been withdrawn. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a May 2012 rating decision, the Regional Office (RO) denied the Veteran's claim of entitlement to service connection for sleep apnea. The RO notified him accordingly in May 2012. He did not file a Notice of Disagreement (NOD) or submit new and material evidence within one year. 2. Additional, non-cumulative evidence or arguments were received since the May 2012 rating decision, which relates to unestablished facts necessary to substantiate the service connection claim for sleep apnea and raises a reasonable possibility of substantiating the claim. 3. The Veteran's bilateral hand disability did not manifest during active service, is not presumed to be caused by service, and has not been found otherwise etiologically related to or etiologically linked to an in-service event, injury, or disease. 4. On March 10, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his claim of an evaluation of prostate cancer in excess of 20 percent. 5. On March 10, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his claim of an evaluation of lumbago in excess of 10 percent from October 6, 2011 to November 15, 2019. 6. On March 10, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his claim of an evaluation of lumbago in excess of 20 percent since November 15, 2019. 7. On January 7, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his claim of service connection for degenerative arthritis of the right knee. CONCLUSIONS OF LAW 1. The May 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. New and material evidence has been received. The claim of entitlement to service connection for sleep apnea is reopened. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for Entitlement to service connection for a bilateral hand disability have not been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for withdrawal have been met, and the appeal regarding a claim of an evaluation of prostate cancer in excess of 20 percent is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal have been met, and the appeal regarding a claim of an evaluation of lumbago in excess of 10 percent from October 6, 2011 to November 15, 2019 is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal have been met, and the appeal regarding a claim of an evaluation of lumbago in excess of 20 percent since November 15, 2019 is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal have been met, and the appeal regarding a claim of service connection for degenerative arthritis of the right knee is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from December 1965 to December 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2017, and May 2017 rating decisions of a Department of Veterans Affairs (VA) RO. In January 2020 a rating decision granted an evaluation for lumbago at 20 percent effective November 15, 2019. See Rating Decision-Narrative dated January 2020. Then in January 2020, the Veteran withdrew his claim for service connection for a right knee disability. See Third Party Correspondence dated January 2020. While the Veteran initially requested a hearing, in November 2020 he withdrew his request for a hearing. See Third Party Correspondence received November 2020. In March 2021, the Veteran through his representative provided arguments as to his claims as well as withdrew his claims to lumbago and prostate cancer. See Third Party Correspondence received March 2021. Reopening Generally, if a claim of entitlement to service connection has been previously denied, by the Board or by a RO, that decision is final, unless the Veteran appealed in a timely manner. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 3.104, 20.1100, 20.1103. However, a previous claim of entitlement to service connection can be reopened if the Veteran files again and if new and material evidence is presented. 38 U.S.C. § 5108. The VA is required to review all the evidence submitted by a Veteran since the last final denial of the claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet. App. 523 (1994). "New" evidence means not previously part of the actual records before the agency adjudicators. "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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. The Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened. Here, the RO denied the Veteran's service connection claim for sleep apnea in a May 2012 rating decision. The RO determined that there was no evidence of an event, disease, or injury, as the Veteran's service treatment records did not contain complaints, treatment, or diagnosis of sleep apnea. See Notification Letter received May 2012. As the Veteran did not appeal that denial or submit any evidence within one year, it became final. In January 2017, the Veteran filed a petition to reopen the issue of entitlement to service connection for sleep apnea. Furthermore, since the May 2012 rating decision, the Veteran through his representative has argued that his sleep apnea is caused by obesity which has been caused by his service-connected impairments. In particular, the Veteran contends his numerous service-connected impairments have prevented him from exercising or ambulating, which thereby has caused his sleep apnea. See Third Party Correspondence. The Veteran specifically requests a VA examination, since to date the Veteran has not received a compensation and pension examination as to his sleep apnea impairment. Id. Therefore, the Board finds that the Veteran's claim for entitlement to service connection for sleep apnea should be reopened. The bar to reopening a claim for new and material evidence is low. Shade, 24 Vet. App. 110. The evidence submitted since the prior, final May 2012 denial relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Therefore, such evidence is new and material, and the claim for service connection for sleep apnea is reopened. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Arthritis is considered a chronic disease under 38 C.F.R. § 3.309(a). For arthritis to be presumed service-connected, under this provision, it must manifest to a degree of 10 percent within one year from date of termination of such service. See 38 C.F.R. § 3.307(a)(3). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Entitlement to service connection for bilateral hand disability is denied. The Veteran contends that he is entitled to service connection for a bilateral hand disability. First, the Board considered whether service connection was warranted on a presumptive basis. However, the evidence does not support that the Veteran's bilateral hand arthritis manifested to a compensable degree within one year of discharge. The evidence also does not show a continuity of symptoms since service. For example. In November 2016, the Veteran had a VA examination. He told the examiner that his hand disability began over time, but no date was stated. The examiner performed imaging at the time of the VA examination. The imaging found osteoarthritic changes. See C&P Exam received November 2016. Next, the Board considered direct service-connection, but the evidence does not show a causal relationship ("nexus") between the Veteran's present hand disability and an in-service event, injury, or disease. For direct service connection, you must have a present disability. As noted above, the Veteran had imaging showing osteoarthritic changes in his hands. See C&P received November 2016. Therefore, a present disability is shown. Next, for direct service connection, the Veteran must also have an in-service event, injury, or disease. The Veteran did not provide a specific description of any in service event, injury, or disease. Additionally, the Veteran's service treatment records do not reflect that he suffered from any particular injury to his hand during active military service. Therefore, an in-service event, injury, or disease is not supported by the evidence. Lastly, the records also do not support a causal relationship ("nexus") between the present disability and any in-service event, injury, or disease. The Board emphasizes that it is aware that the Veteran has not received a VA opinion with respect to his service connection claim for his bilateral hand disability. However, there is no probative evidence of an in-service event, injury, or disease or competent evidence suggesting a possible association between the current disability and service. Therefore, a VA examination is not required. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). In this case, the absence of any medical evidence of treatment for the Veteran's claimed bilateral hand disability following separation from service tends to show that the claimed disorder was not a result of his military service. As such, there is no basis for establishing service connection for the claimed disability on appeal. The Board further notes that the Veteran told his provider at the VA in 2011 that he was an electrical contractor and used his hands often. See CAPRI received February 2012. While the Veteran believes that his current bilateral hand disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a hand disability is a matter not capable of lay observation and requires medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his bilateral hand disability is not competent medical evidence. Based on the foregoing, the Board finds that the claimed bilateral hand disability on appeal was not manifested during, or as the result of active military service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) on reasonable doubt are not applicable. The claim of entitlement to service connection for a bilateral hand disability must be denied. Withdrawn Claims 1. Entitlement to an evaluation of prostate cancer in excess of 20 percent has been withdrawn. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran has withdrawn the issues of lumbago and prostate cancer on appeal in a March 2021 correspondence and, hence, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. 2. Entitlement to an evaluation of lumbago in excess of 10 percent from October 6, 2011 to November 15, 2019 has been withdrawn. See section 1 above. 3. Entitlement to an evaluation of lumbago in excess of 20 percent since November 15, 2019 has been withdrawn. See section 1 above. 4. Entitlement to service connection for degenerative arthritis of the right knee has been withdrawn. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran has withdrawn the issue of service connection for a right knee disability on appeal in a January 2020 correspondence and, hence, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. Although further delay is regrettable, the Board finds additional development is required specifically for the claim of service connection for sleep apnea. The VA must provide an examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (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; (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) there is insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i). Here, the Veteran's VA treatment records show that he sleeps with a CPAP and has been diagnosed with sleep apnea. See CAPRI received January 2018. This satisfies the first requirement of the McLendon analysis, competent evidence of a current disability. The Veteran contends that his obesity has caused his sleep apnea. He contends that his obesity is caused by his inability to exercise or ambulate as a result of his numerous service-connected disabilities. See Third Party Correspondence received March 2021. The Veteran has multiple service-connected impairments including ischemic heart disease, prostate cancer, radiculopathy in both lower extremities, and lumbago. The Board notes that while obesity does not qualify as a disease or disability, it can serve as an intermediate step to establish service connection for another condition. Since, the Veteran has provided an indication that the disability may be associated with the Veteran's service-connected disabilities, and since there is insufficient competent medical evidence on file for VA to make a decision on the claim, the VA must provide a competent medical opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent medical treatment records from VA, private health care providers, and any other updated relevant treatment records and associate them with the claims file. 2. After the above development is complete, obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's sleep apnea. The entire claims file must be reviewed, including a copy of this remand. If the examiner determines a physical examination is necessary to provide the requested opinions, such should be scheduled. The examiner must address the following questions: (a.) Is the Veteran's sleep apnea at least as likely as not (i.e. 50 percent probability or greater) related to or proximately due to (i.e., a direct cause), or aggravated beyond its natural progression by a previously service-connected disability? Please explain why this is or is not so. (b.) Is the Veteran's obesity a result of one of the Veteran's previously service-connected disabilities? (c.) If it is not as least as likely as not that the Veteran's sleep apnea is etiologically related to a previously service-connected disability, please identify the likely cause of the Veteran's sleep apnea. Specifically, is it at least as likely as not (i.e. 50 percent probability or greater) that the Veteran's sleep apnea is related to or the result of an in-service injury, event, or disease? Please explain why this is or is not so. A complete rationale must be provided for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. 3. Following the completion of the foregoing, and any other development deemed necessary, the RO should readjudicate the Veteran's claim. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.