Citation Nr: 21040322 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-27 194 DATE: July 3, 2021 ORDER Reconsideration of the claim of entitlement to service connection for obstructive sleep apnea (OSA) is warranted. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for pes planus. Entitlement to service connection for OSA is granted. Entitlement to service connection for pes planus is granted. FINDINGS OF FACT 1. A January 2006 rating decision denied the Veteran's claim of entitlement to service connection for OSA, and an October 2009 rating decision denied the Veteran's claim of entitlement to service connection for OSA and pes planus. The Veteran did not appeal those decisions and new and material evidence was not received within one year of notice of their issuance. 2. In March 2017, VA received relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim for OSA following his last period of active service. 3. Evidence received more than one year since the most recent final October 2009 rating decision has not been previously considered and relates to unestablished facts necessary to substantiate the Veteran's claims of entitlement to service connection for pes planus. 4. There is clear and unmistakable evidence that the Veteran's OSA preexisted his final period of active service. 5. There is not clear and unmistakable evidence that the Veteran's OSA was not aggravated by his final period of active service. 6. The Veteran's OSA had its onset during active service. 7. There is clear and unmistakable evidence that the Veteran's pes planus preexisted his final period of active service. 8. There is not clear and unmistakable evidence that the Veteran's pes planus was not aggravated by his final period of active service. 9. The Veteran's pes planus had its onset during active service. CONCLUSIONS OF LAW 1. The January 2006 and October 2009 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Reconsideration of the claim of entitlement to service connection for OSA is warranted. 38 C.F.R. § 3.156(c). 3. New and material evidence has been received to reopen the previously-denied claims of entitlement to service connection for pes planus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b). 4. The criteria for entitlement to service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.301(a), 3.303. 5. The criteria for entitlement to service connection for pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.301(a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1986 to January 1991 and October 1991 to January 1996, and in the United States Army from September 2002 to August 2004 and May 2007 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. Reconsideration/New and Material Evidence A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). This section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source. 38 C.F.R. § 3.156(c)(2). 1. Reconsideration of the claim of entitlement to service connection for OSA is warranted. 2. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for pes planus. A September 2006 rating decision denied the Veteran's claim for service connection for OSA, among other claimed disabilities. The Veteran did not file a Notice of Disagreement (NOD) within one year of notification of the September 2006 denial, and new and material evidence was not received within this period. Accordingly, the September 2006 rating decision is final. See 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. In a May 2008 Statement in Support of Claim, the Veteran claimed service connection for OSA, among other disabilities. Then, in November 2008, the Veteran filed a VA Form 21-526 claiming entitlement to service connection for OSA and pes planus, among other claimed disabilities. Critically, on this form, the Veteran indicated that he was currently on active duty with the Army since May 2007. In October 2009, a rating decision was issued denying, in relevant part, service connection for OSA and pes planus on the basis that the evidence failed to show in-service onset or aggravation of OSA and pes planus. The Veteran did not file a NOD within one year of notification of the October 2009 denial, and new and material evidence was not received within this period. Accordingly, the October 2009 rating decision is final. See id. In June 2011, the Veteran requested to reopen his claims for service connection for OSA and pes planus. See June 2011 VA Form 21-526b, Supplemental Claim; June 2011 Statement in Support of Claim. Evidence received more than one year after the most recent final rating decision, issued in October 2009, includes a September 2010 VA podiatry outpatient note and an October 2008 Statement of Medical Examination and Duty Status (Line of Duty Report or LODR). The September 2010 VA podiatry note was first uploaded to the claims file in May 2011 and the October 2008 LODR was first uploaded to the claims file in March 2017. The September 2010 VA podiatry note indicates the Veteran requested a new pair of orthotics for "chronic pain on the bottom of his feet" and the note indicates an assessment of pes planus. This evidence is new in that it was not considered in the October 2009 denial. This evidence is material in that it establishes the Veteran's pes planus was aggravated shortly after leaving his final period of service. Furthermore, this evidence raises a reasonable possibility of substantiating the claim because it means the claim cannot be denied solely on the basis that the condition preexisted service and was not aggravated by service, as the RO found. Accordingly, new and material evidence has been received to reopen the claim. 38 C.F.R. § 3.156(b). The October 2008 LODR provides a diagnosis of OSA and states the disability was incurred in the line of duty. This evidence is an official service department record that existed and had not been associated with the claims file when VA first decided the claim for OSA based on the Veteran's most recent period of service that ended in 2009. Moreover, the Veteran provided sufficient information to identify and obtain these records on his November 2008 VA Form 21-526. Accordingly, reconsideration of the OSA claim is warranted. 38 C.F.R. § 3.156(c). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Presumption of Soundness A veteran is presumed to be in sound condition where he or she is examined, accepted, and enrolled in service, except for defects noted at service entry. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where a defect is not noted at service entry, the presumption of soundness is not rebutted unless there is clear and unmistakable evidence that a disability preexisted service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). 3. Entitlement to service connection for OSA is granted. The Veteran asserts that his OSA had its onset during active service. See May 2021 Appellate Brief; May 2021 Board Hearing transcript (Tr.) at 3-9; May 2017 VA Form 9; June 2011 Correspondence. The Board agrees. In this case, there is a question as to whether the Veteran's OSA preexisted his final period of active service from May 2007 to February 2009. In this regard, OSA is not listed as a preexisting condition on the November 2006 entrance Report of Medical Examination (ROME) prior to this period of service. In addition, the Veteran did not endorse a history of OSA on the accompanying Report of Medical History (ROMH). However, a sleep study conducted in December 2004 resulted in a diagnosis of OSA. Additional VA treatment records indicate the Veteran was using a CPAP device to treat his OSA before his final period of active service. See December 2006 and October 2006 VA neurology notes; April 2006 VA treatment record. Thus, the Board finds there is clear and unmistakable evidence that the Veteran's OSA preexisted his final period of active service, given the 2004 sleep study, numerous diagnoses of the same in his VA treatment records, and notes stating he was using a CPAP to treat OSA. Thus, the first prong of the presumption of soundness has been rebutted. However, the Board also finds no clear and unmistakable evidence that OSA was not aggravated by the Veteran's last period of service. In this regard, a February 2006 annual medical certificate notes that the Veteran's OSA was well-controlled by use of a CPAP machine. In contrast to the fact that his OSA was well-controlled in 2006, the October 2008 LODR notes that the Veteran was seen in July 2008 for difficulty sleeping, demonstrating that his OSA had worsened over the intervening two years. In other words, the Veteran was initially diagnosed with OSA in 2004 and his OSA was well-controlled in 2006; however, he began re-experiencing sleep problems in 2008 while on active duty. Stated another way, during his final period of active service the Veteran's OSA was no longer well-controlled (i.e., it had been aggravated) whereas it had previously been well-controlled before this period of service. Thus, there is not clear and unmistakable evidence that the Veteran's OSA had not been aggravated by active service, since the July 2008 sleep study and subsequent LODR would not have been needed had his OSA remained well-controlled. Thus, given this evidence, the Board finds that the presumption of soundness cannot be rebutted by clear and unmistakable evidence. Accordingly, the claim becomes one for direct service connection. See Wagner, 370 F.3d 1089 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that the claim is converted into a normal claim for service connection). With respect to the first element of service connection, a current disability, VA treatment records establish a diagnosis of OSA and use of a CPAP machine. See March 2018, December 2017, September 2017, and April 2017 VA primary care notes; July 2016 C&P PTSD examination; June 2014 and March 2010 VA nursing notes; February 2010 VA anesthesiology summary; November 2009 VA anesthesia evaluation. These records establishing a diagnosis of OSA outweigh other VA records indicating that two sleep studies conducted in 2010 failed to show OSA. See December 2010 and October 2010 VA sleep study notes. The 2010 studies failing to show OSA are non-probative as they include notations that the studies were of insufficient length to be conclusive. Id.; see also May 2013 VA sleep clinic follow-up note (stating the 2010 studies were of insufficient length; therefore, OSA "could not be excluded" by the negative studies); January 2011 VA treatment note (describing the negative studies as "suboptimal based on duration of sleep"). Furthermore, these negative 2010 studies are rebutted by the more recent records documenting a current diagnosis of OSA and current treatment in the form of a CPAP machine. Thus, the first element of service connection for OSA is met. With respect to the second element of service connection, in-service incurrence, the record contains two sleep studies providing a diagnosis of OSA, one study conducted in December 2004 four months after leaving his third period of active duty and the other study conducted in July 2008 during his final period of active duty. The Veteran credibly testified that the December 2004 sleep study was originally scheduled, and should have been conducted, during a period of active duty, and the medical records corroborate this testimony. Tr. 5-7; see also October 2006 (noting the Veteran reported severe insomnia during deployment that preceded the 2004 sleep study); June 2004 post-deployment health assessment (reporting sleep problems). The July 2008 sleep study also resulted in a diagnosis of OSA and was followed by an October 2008 LODR stating that the OSA was incurred in the line of duty. Thus, the second element of service connection for OSA is met. The first two elements of service connection having been met, this case turns on a causal relationship between the current disability and in-service incurrence, otherwise known as a nexus. Although the record does not contain any nexus opinions regarding OSA, either positive or negative, the medical evidence discussed above establishing in-service incurrence is also sufficient to establish a nexus between the Veteran's OSA and active duty. In this regard, the Board finds the October 2008 LODR probative in establishing a nexus between the Veteran's current OSA and the OSA that was incurred on active duty. VA regulations provide that "direct service connection may be granted when a disability . . . was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct" or due to abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). Here, the October 2008 LODR states in the medical opinion section that the Veteran was not under the influence of alcohol or drugs; the injury was incurred in the line of duty; and the injury may result in permanent partial disability. There is no evidence of record suggesting the OSA was incurred as a result of willful misconduct. The LODR further indicates that the OSA is considered to have been incurred in the line of duty. Attached to the LODR are the results of a July 2008 polysomnogram study, which resulted in a diagnosis of OSA. Moreover, a September 2008 service treatment record (STR) explains "[s]ince being here [the Veteran] has had a sleep study and has been found to have mild to moderate obstructive sleep apnea and has been advised to begin continuous positive airway pressure. This will result in a P2 profile." See also September 2008 Physical Profile (listing OSA). This evidence further supports the conclusion that the Veteran's OSA had its onset during active duty. Moreover, there is no conflicting evidence of record to rebut this finding of a nexus between OSA and active service. In sum, all three elements of service connection for OSA are met. Therefore, the benefit sought on appeal is granted. 4. Entitlement to service connection for pes planus is granted. The Veteran relates his pes planus to the cumulative impacts of his active service, specifically marching and the physical demands of military police work. See May 2021 Appellant's Brief; Tr. 10-11. The Board agrees. In this case, there is a question as to whether the Veteran's pes planus preexisted his active service. In this regard, moderate asymptomatic pes planus is noted on his November 1985 enlistment ROME. Pes planus, however, is not listed on the July 1993 ROME, January 1996 ROME, May 1996 ROME, or July 2001 ROME. Pes planus mild is listed as a preexisting condition on his February 2006 ROME; however, an August 2006 ROME indicates a normal arch and no pes planus. Although the August 2006 ROME conducted prior to his final period of service indicates no pes planus, VA treatment records indicate a diagnosis of pes planus and use of orthotics to treat pes planus prior to this final period of service. See December 2006 neurology consult; October 2006 VA emergency department note; April 2006 VA treatment record (stating "Pes planus-using orthotics with +benefit"); July 2005 VA primary care note (stating "Pes planus-waiting to have orthotic molds made"); May 2005 VA primary care note ("Pes planus-referred to podiatry for orthotics."); April 2005 VA primary care note ("Pes planus-being fitted for orthotics."). Thus, the Board finds there is clear and unmistakable evidence that the Veteran's pes planus preexisted his final period of active service, given the numerous diagnoses of the same in his VA treatment records, and notes stating he was using orthotics to treat pes planus before this final period of service. Thus, the first prong of the presumption of soundness has been rebutted. However, the Board also finds no clear and unmistakable evidence that pes planus was not aggravated by the Veteran's last period of service. In this regard, the February 2006 ROME characterizes his pes planus as mild and the August 2006 ROME indicates a normal arch. In contrast, however, the September 2008 separation ROME characterizes his pes planus as symptomatic, moderate to severe. This means that the Veteran entered his last period of active duty with a normal to mild condition and left his last period of active duty with a moderate to severe condition. In other words, the condition was aggravated during the last period of active service. Furthermore, an April 2009 VA treatment note, written only two months after leaving his last period of active service, indicates a referral for new orthotics to treat pes planus, further suggesting his condition had been aggravated. Thus, given this evidence, the Board finds that the presumption of soundness cannot be rebutted by clear and unmistakable evidence. Accordingly, the claim becomes one for direct service connection. See Wagner, 370 F.3d 1089 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that the claim is converted into a normal claim for service connection). With respect to the first element of service connection, a current disability, VA treatment records establish a current diagnosis of pes planus. See April 2018 VA neurosurgery consult; March 2018 and September 2015 VA primary care notes; November 2013 VA neurosurgery note. Thus, the first element of service connection is met. With respect to the second element of service connection, in-service incurrence, the August 2006 ROME conducted prior to his final period of active service indicates a normal foot arch and the September 2008 ROME conducted for purposes of a Medical Board indicates moderate to severe symptomatic pes planus. Given that the 2006 ROME indicates no pes planus and a normal arch and the 2008 ROME indicates moderate to severe pes planus, that leaves only one possibility: pes planus was incurred during this final period of active service. Furthermore, the Veteran's description of the cumulative impact of his active service duties is consistent with the places, types, and circumstances of military police work. See 38 U.S.C. § 1154(a); Tr. 10-11; DD 214s. Thus, the second element of service connection is met. Although the record does not contain any nexus opinions regarding pes planus, either positive or negative, the medical evidence discussed above establishing in-service incurrence is also sufficient to establish a nexus between the Veteran's pes planus and active duty. In this regard, the Board finds that the September 2008 ROME conducted near the end of his final period of service, which ended in February 2009, demonstrates that his pes planus had its onset during active service; thus, nexus is established. See 38 C.F.R. § 3.301(a). Further supporting this conclusion is an April 2009 VA treatment record indicating the Veteran was referred for orthotics to be made for his pes planus. Moreover, the Veteran credibly testified at the Board hearing that he has experienced pes planus symptoms since leaving service and the medical records corroborate this testimony. Tr. 15; see May 2018, March 2018, September 2015, November 2013, May 2012, February 2012, September 2011, August 2011, June 2011, January 2011, October 2010, September 2010, and April 2009 VA treatment notes. Lastly, there is no conflicting evidence of record to rebut this finding of a nexus between pes planus and active service. In sum, all three elements of service connection for pes planus are met. Therefore, the benefit sought on appeal is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.