Citation Nr: 21030617 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-39 425 DATE: May 19, 2021 ORDER The claim for entitlement to service connection for a right ankle disability is reopened. To this extent only, the appeal is granted. The claim for entitlement to service connection for a back disability is reopened. To this extent only, the appeal is granted. REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected left ankle disability is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected left ankle disability is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left ankle disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. The Veteran's initial claim for service connection for a right ankle disability was denied by the agency of original jurisdiction (AOJ) in October 2010. The Veteran did not express disagreement or submit new and material evidence within one year, and the decision became final. Since October 2010, the Veteran has submitted new and material evidence that relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 2. The Veteran's initial claim for service connection for a low back disability was denied by the AOJ in a July 2004 rating decision. The Veteran did not express disagreement or submit new and material evidence within one year, and the decision became final. Since July 2004, the Veteran has submitted new and material evidence that relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2010 rating decision that denied service connection for a right ankle disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The July 2004 rating decision that denied service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1973 until July 1994. In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In May 2021, the Veteran executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, and named the individual listed on the title page above as his representative pursuant to 38 C.F.R. § 14.630. This provision allows for representation by an individual unaccredited by VA for one time only. SERVICE CONNECTION 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. § 7104 (b). 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). Further, 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 VA 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 credible 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). The claim for entitlement to service connection for a right ankle disability is reopened. In the October 2010 rating decision denying service connection, the AOJ considered evidence including statements in support of the claim, service treatment records (STRs), and VA treatment records. The AOJ denied the claim because there was no nexus. Since October 2010, new and material evidence has been submitted. This includes as positive nexus medical opinion from a VA examiner in September 2012, a November 2013 lay statement from the Veteran that he favors his left ankle and puts pressure on the right side, avoided medical care despite constant pain in service and that he continues to have chronic pain, and his sworn testimony that his left ankle impacts his right ankle. When considering the minimal evidentiary threshold standards under Shade, this competent medical and lay evidence is material to previously unestablished facts regarding the connection between the Veteran's right ankle disability and his military service. As this evidence exists and was not previously submitted to agency decisionmakers, it is new evidence. As new and material evidence has been received, the claim for service connection for a right ankle disability is reopened. The claim for entitlement to service connection for a low back disability is reopened. In the July 2004 rating decision denying service connection for a low back disability, the AOJ considered the STRs and outpatient treatment records. The AOJ denied the claim based upon a lack of showing that a chronic condition occurred or was caused by service. Since July 2004, new and material evidence has been submitted. This includes a lay statement submitted by the Veteran in April 2014 in which he said that he avoided medical care despite constant pain while in service and that he continues to have chronic pain and sworn testimony from the Veteran that his low back pain is secondary to his service-connected left ankle disability. When considering the minimal evidentiary threshold standards under Shade, this competent lay evidence is material to previously unestablished facts including showing of a chronic low back condition while in service. Therefore, this evidence raises a reasonable possibility of substantiating the claim for service connection. Additionally, the evidence is new because it is existing evidence that was not previously considered by agency adjudicators. Because the evidence received since the July 2004 final rating decision is new and material, the claim for service connection for a low back disability is reopened. REASONS FOR REMAND Entitlement to service connection for a low back disability, to include as secondary to service-connected left ankle disability is remanded. The Veteran asserts that his low back disability may be related to his military service or to his service-connected left ankle disability. The claim is remanded to obtain an adequate medical opinion. An April 2014 negative VA opinion did not address the Veteran's period of service prior to the Gulf War. An October 2015 VA examiner impermissibly relied solely upon an absence of documentation of continuing treatment or complaints for low back pain or other issues in the Veteran's service treatment records. The examiner did not consider the Veteran's lay statements that he had continuous back pain in service for which he did not seek treatment, but did receive Motrin and other treatment in the field from the assigned medical corpsman. The opinion on remand should also address whether the Veteran's back disability is due to or aggravated by his service-connected left ankle disability. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected left ankle disability is remanded. The Veteran asserts that his right ankle disability is etiologically related to service to include as secondary to his service-connected left ankle disability. The claim is remanded for an adequate medical opinion. The July 2013 VA opinion does not consider the Veteran's lay assertions that his right ankle disability is caused or aggravated by his left ankle disability because he puts more pressure on his right ankle due to the left ankle disability. Additionally, the opinion does not address the aggravation prong of secondary service connection. The October 2015 VA is inadequate because the opinion provider impermissibly relied upon an absence of documentation of complaints or injury in the Veteran's STRs as affirmative evidence of no such injury or complaints in service. However, the Veteran has testified that he experienced chronic pain in service for which he did not seek medical treatment except for receiving Motrin and other pain relievers from the medical corpsman assigned to his unit. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left ankle disability is remanded. The Veteran asserts that he has a right knee disability that is etiologically related to service or secondary to his service-connected left ankle disability. The claim is remanded for an adequate medical opinion. September 2013 VA and October 2015 VA opinions did not address secondary service connection and did not consider the Veteran's competent reports of pain in service for which he did not seek treatment and that he's had continuous pain since then. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea is etiologically related to service. The claim is remanded to obtain an adequate medical opinion. The April 2014 negative VA opinion is inadequate because it relied solely on a lack of documented treatment; the examiner did not consider competent lay statements of observing possible symptoms in service. Entitlement to service connection for a neck disability is remanded. The Veteran asserts that his neck disability is etiologically related to service. The claim is remanded to obtain an adequate medical opinion. VA opinions obtained in April 2014 and October 2015 are inadequate because they do not consider the Veteran's competent report of continuous symptomatology since service. The Veteran receives medical care at VA. On remand, updated VA treatment records should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's file VA treatment records from August 2020 until present. 2. After completion of the above, obtain an addendum medical opinion to address the likely etiology of the Veteran's low back disability from an appropriate clinician. The opinion provider should be provided with all pertinent documents. If the opinion provider determines a requested opinion cannot be made without examination of the Veteran, an exam should be scheduled. After reviewing pertinent documents and any additional testing or examination that is necessary, the opinion provider is asked to answer the following: (a) Identify all currently diagnosed back disabilities. (b) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed back disability is related to his active service? (c) Is it at least as likely as not that any diagnosed back disability is (i) proximately due to or (ii) aggravated by (defined as any increase in disability) his service-connected left ankle disability? In answering the foregoing, the opinion provider must consider, and discuss as necessary (i) the Veteran's assertion that he experienced constant pain in service but did not seek medical care at the time and that he continues to have chronic pain; (ii) documented instances of back pain in the Veteran's service treatment records including: (1) noted "back pain-chronic" on February 11, 1974, (2) a record from November 19, 1974 noting pain in the mid back assessed as "chronic back pain, possibly lifelong," and (3) a report of back pain after running on June 1, 1979. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the above, obtain an addendum medical opinion to address the likely etiology of the Veteran's right ankle disability from an appropriate clinician. The opinion provider should be provided with all pertinent documents. If the opinion provider determines a requested opinion cannot be made without examination of the Veteran, an exam should be scheduled. After reviewing pertinent documents and any additional testing or examination that is necessary, the opinion provider is asked to answer the following: (a) Identify all currently diagnosed right ankle disabilities. (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed right ankle disability is related to his active service? (c) Is it at least as likely as not that any right ankle disability is (i) proximately due to or (ii) aggravated by (defined as any increase in disability) his service-connected left ankle disability? In answering the foregoing, the opinion provider must consider, and discuss as necessary, the Veteran's assertion that he experienced constant pain in service but did not seek medical care at the time and that he continues to have chronic pain. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 4. Obtain an addendum medical opinion to address the likely etiology of the Veteran's right knee disability from an appropriate clinician. The opinion provider should be provided with all pertinent documents. If the opinion provider determines a requested opinion cannot be made without examination of the Veteran, an exam should be scheduled. After reviewing pertinent documents and any additional testing or examination that is necessary, the opinion provider is asked to answer the following: (a) Identify all currently diagnosed right knee disabilities. (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed right knee disability is related to his active service? (c) Is it at least as likely as not that any right knee disability is (i) proximately due to or (ii) aggravated by (defined as any increase in disability) his service-connected left ankle disability? In answering the foregoing, the opinion provider must consider, and discuss as necessary, the Veteran's assertion that he experienced constant pain in service but did not seek medical care at the time and that he continues to have chronic pain. 5. Obtain an addendum medical opinion to address the likely etiology of the Veteran's sleep apnea from an appropriate clinician. The opinion provider should be provided with all pertinent documents. If the opinion provider determines a requested opinion cannot be made without examination of the Veteran, an exam should be scheduled. After reviewing pertinent documents and any additional testing or examination that is necessary, the opinion provider is asked to answer the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is related to his active service? In answering the foregoing, the opinion provider must consider, and discuss as appropriate, the following: (i) the Veteran's sworn testimony that, while he was on active duty, his wife would wake him up due to excessive snoring and her worry that he wasn't breathing and (ii) the statement of the Veteran's daughter, a registered nurse, that the while the Veteran was on active duty, she remembers him snoring so loudly you could hear him outside the home, his difficulty breathing while sleeping, and his daytime somnolence, which she recognizes as symptoms of sleep apnea. 6. Obtain an addendum medical opinion to address the likely etiology of the Veteran's neck disability from an appropriate clinician. The opinion provider should be provided with all pertinent documents. If the opinion provider determines a requested opinion cannot be made without examination of the Veteran, an exam should be scheduled. After reviewing pertinent documents and any additional testing or examination that is necessary, the opinion provider is asked to answer the following: (a) Identify all currently diagnosed neck disabilities. (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed neck disability is related to his active service, to include carrying a heavy pack long distances over uneven terrain? A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 7. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard for secondary aggravation opinions is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If the incorrect standard is used or the opinion is otherwise deficient, obtain an addendum opinion prior to readjudication. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.