Citation Nr: 21040363 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-58 363 DATE: July 3, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right shoulder disability is reopened. New and material evidence having been received, the claim of entitlement to service connection for a thoracolumbar spine disability is reopened. New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An April 1999 rating decision denied service connection for a right shoulder disability, a lumbar spine disability, and hypertension. The Veteran did not appeal that decision; and new and material evidence was not received prior to expiration of the appeal period. 2. Evidence received since the April 1999 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a right shoulder disability. 3. Evidence received since the April 1999 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disability. 4. Evidence received since the April 1999 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The April 1999 rating decision denying service connection for a right shoulder disability, a lumbar spine disability, and hypertension is final. 38 U.S.C. §§ 7105(c); 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for a right shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim of service connection for a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been received to reopen the claim of service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1978 to August 1998; he retired from the Army after 20 years of honorable service. The Board would like to thank the Veteran for his service to his country. In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. Requests to Reopen Claims A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. The Veteran filed his original claim for service connection for a right shoulder disability, lumbar strain, and hypertension in September 1998. An April 1999 rating decision denied service connection for these issues. That decision determined that there was no disability with respect to the Veteran's right shoulder, lumbar spine, or hypertension. The rating decision noted that on VA examination, the Veteran's right shoulder was normal, his lumbar spine was essentially normal, and that there was not a confirmed diagnosis of hypertension as the blood pressure readings were 138/80, 130/80, and 130/80. The Veteran did not appeal this decision. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C. §§ 7105(c); 38 C.F.R. § 20.1103. Thus, the April 1999 decision is final. The Veteran's application to reopen his service connection claims was received in January 2014 at which time he also filed claims for service connection for PTSD, hearing loss, and tinnitus. The Board notes that by a May 2015 rating decision, the AOJ denied reopening the claims for service connection for a right shoulder disability, lumbar strain, and hypertension. On appeal, however, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Additional evidence received since the April 1999 rating decision includes VA treatment records, private treatment records, duplicate service treatment records submitted by the Veteran, and personal hearing testimony from the Veteran. At the onset, the Board acknowledges that at first glance, it appears that service treatment records were associated with the file after the April 1999 rating decision. There are six documents with the document type STR, four are dated March 20, 2014, one is dated December 30, 2014, and one is dated November 25, 2015. VA regulation provides that, 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, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156 (c). The April 1999 rating decision indicated that the evidence reviewed included the Veteran's service treatment records. The decision noted that in September 1992 and again in February 1993, the Veteran was seen for right shoulder strain; and that in May 1994, the Veteran was seen for mechanical low back pain and muscle spasm. This information is included in Volume II of II which contains 126 pages. That decision also noted that the Veteran was seen for atypical chest pain in 1984, 1991, and 1996; the record dated in 1996 is included in Volume I of II which contains 102 pages, and records dated in 1984 and 1991 are included in Volume II of II. As such, it appears that the AOJ had Volumes I and II when the April 1999 rating decision was issued. As such, the Board finds the March 2014 STR document date is arbitrary. In addition, the Board finds no reason to believe that the other STR documents dated in March 2014 and the document dated in December 2014 were not of record at the time of the April 1999 rating decision. There is no indication that they were sent in by the Veteran; and there is no indication that they were requested by the AOJ. With respect to the STRs received in November 2015, they appear to have been submitted by the Veteran as post service private treatment records were also included in the submission. These records, however, appear to be duplicates of the records in Volumes I and II. As such, the Board finds that the STR documents dated in 2014 were of record at the time of the April 1999 rating decision and that the STR document submitted by the Veteran in 2015 contain duplicate service treatment records, reconsideration of the Veteran's claim under 38 C.F.R. § 3.156 (c) is not warranted. 1. Request to reopen claim for service connection for a right shoulder disability As noted above, the April 1999 decision denied service connection for a right shoulder disability because there was no disability with respect to the Veteran's right shoulder. Based on the grounds stated for the denial of service connection for a right shoulder disability in the April 1999 rating decision, new and material evidence would consist of evidence of a current right shoulder diagnosis; or evidence that the Veteran's shoulder complaints "reaches the level of a functional impairment of earning capacity." See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran presented testimony at the March 2021 Board hearing that he first hurt his right shoulder during service and that he had pain in his right shoulder during service, that the pain was still bothering him following service, and that the pain is still present. The Veteran described that his shoulder pain limited his ability to move his shoulder. Although there is not a right shoulder diagnosis, presuming the credibility of his testimony, there appears to be a "functional impairment of earning capacity" of the right shoulder. Accordingly, the Board finds that the evidence received since the April 1999 rating decision is new and material and serves to reopen the claim. 2. Request to reopen claim for service connection for a thoracolumbar spine disability As noted above, the April 1999 decision denied service connection for a lumbar spine disability because there was no disability with respect to the Veteran's lumbar spine. Based on the grounds stated for the denial of service connection for a lumbar spine disability in the April 1999 rating decision, new and material evidence would consist of evidence of a current lumbar spine diagnosis; or evidence that the Veteran's shoulder complaints "reaches the level of a functional impairment of earning capacity." See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The record indicates that the Veteran has low back pain. In July 2017, the Veteran noted that the Veteran had stiff achy pain in his central lumbar region. A June 2014 x-ray showed normal lumbar sacral spine except for osteophytic spurring. A July 2017 x-ray showed Grade I retrolisthesis of L5 over S1 with suggestion of pars defect as well as mild degenerative disc disease at L3-S1. A September 2017 Physical Medicine Rehab Consultation includes a provisional diagnosis of chronic low back pain. The Veteran presented testimony at the March 2021 Board hearing that he had pain in his back during service which continued since service. As such, the Board finds that the evidence received since the April 1999 rating decision is new and material and serves to reopen the claim. 3. Request to reopen claim for service connection for hypertension As noted above, the April 1999 decision denied service connection for a hypertension because there was no disability with respect to hypertension; essentially, there was not a confirmed diagnosis of hypertension. Based on the grounds stated for the denial of service connection for hypertension in the April 1999 rating decision, new and material evidence would consist of evidence of a current diagnosis of hypertension. The record is replete with diagnoses of hypertension. The Veteran presented testimony at the March 2021 Board hearing that he began treatment shortly after service and continued to have high blood pressure readings. As such, the Board finds that the evidence received since the April 1999 rating decision is new and material and serves to reopen the claim. REASONS FOR REMAND 4. Entitlement to service connection for a right shoulder disability The Veteran's service treatment records indicate that in September 1992, he reported right shoulder pain for one week. After physical examination, the Veteran was diagnosed as having right latissimus dorsi strain. In February 1993, the Veteran reported right shoulder pain for one day; assessment was strain. On the clinical examination for retirement from service, the Veteran's upper extremities were evaluated as normal. Further, on the Report of Medical History completed in conjunction with his separation physical, he denied ever having painful or "trick" shoulder. The Veteran underwent VA examination in December 1998 at which time he reported a history of right shoulder discomfort. The examiner noted that he had no discomfort but had had a previous stiffness about the shoulder with tight muscles. The Veteran presented testimony at the March 2021 Board hearing that he injured his right shoulder during service, that he had right shoulder aching pain during service which has continued since service and limits his ability to move his shoulder. The Board cannot make a fully-informed decision on the issue of because no VA examiner has provided an opinion on the etiology of any current chronic right shoulder disorder. 5. Entitlement to service connection for a thoracolumbar spine disability The Veteran's service treatment records indicate that in May 1994, he reported low back pain for three months. After physical examination, the Veteran was diagnosed as having mechanical low back pain with spasm. On the March 1998 clinical examination for retirement from service, the summary of defects and diagnoses noted mechanical low back pain. At the December 1998 VA examination, the Veteran reported low back pain with some stiffness and tightness. After physical examination, the Veteran was diagnosed as having chronic mild lumbar strain. As noted above, the record indicates that the Veteran has low back pain. In July 2017, the Veteran noted that the Veteran had stiff achy pain in his central lumbar region. A June 2014 x-ray showed normal lumbar sacral spine except for osteophytic spurring. A July 2017 x-ray showed Grade I retrolisthesis of L5 over S1 with suggestion of pars defect as well as mild degenerative disc disease at L3-S1. A September 2017 Physical Medicine Rehab Consultation includes a provisional diagnosis of chronic low back pain. The Veteran presented testimony at the March 2021 Board hearing that he had back pain during service which has continued since service. The Veteran also testified that he was told during service that his back pain was mostly from heavy lifting. The Board cannot make a fully-informed decision on the issue because no VA examiner has provided an opinion on the etiology of any current chronic lumbar spine disorder. 6. Entitlement to service connection for hypertension The Veteran's service treatment records indicate that in October 1984, the Veteran's blood pressure was 130/100. The Veteran was seen in October 1991 for a five-day blood pressure check which showed elevation in diastolic ranging from 90 to 98. Probable hypertension was noted. On the March 1998 clinical examination for retirement from service, the Veteran's blood pressure reading was 130/90; and the summary of defects and diagnoses noted high blood pressure. On the summary and elaboration section of the Report of Medical History completed in conjunction with the Veteran's separation physical, the examiner noted questionable increased blood pressure versus incidental findings. At the December 1998 VA examination, blood pressures readings were 138/80, 130/80, and 130/80. As noted above, the record is replete with diagnoses of hypertension. The Veteran presented testimony at the March 2021 Board hearing that he had elevated blood pressure readings in service which have continued since service. The Board cannot make a fully informed decision on the issue because no VA examiner has provided an opinion on the etiology of the Veteran's hypertension. 7. Entitlement to service connection for an acquired psychiatric disability, to include PTSD Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual for Mental Disorders (DSM-5). The Veteran contends that he has PTSD related to events that happened during his active duty service. In April 2015, the Veteran submitted a Statement in Support of Claim for Service Connection for PTSD in which he described two incidents. The veteran claims that during an amphibious assault training exercise with his unit, he put himself in harm's way while carrying out his duties to rescue his fellow soldiers who had suffered hypothermia. After assisting them to safety, he then became vulnerable to the assignment. In addition, the Veteran claimed that he displayed great leadership and passion while fulfilling his duties as a section chief on the US Army's only active firebase and that he carried the stresses of his assigned role to insure that his unit carried out the assigned mission. In support of his claim, the Veteran submitted evidence of two Army Commendation Medals. The first medal was awarded for exceptionally meritorious achievement on December 14, 1979, while participating in an amphibious assault training exercise at Little Creek Virginia, the Veteran, without regard for his own safety, repeatedly swam into the surf to assist his fellow soldiers safely to the beach where he performed invaluable first aid on numerous hypothermia casualties until he himself succumbed to hypothermia. The second medal was awarded for exceptionally meritorious service while assigned as Howitzer Section Chief from July 1985 to July 1986. The Veteran performed his duties with continued zeal and enthusiasm and that his performance and the performance of his section on numerous events set him apart as a pacesetter within his unit. Initially, the Board notes that the service department determined that the information required to corroborate the stressful events claimed by the Veteran was unavailable and insufficient to submit to the United States Army and Joint Services Records Research Center (JSRRC), the Marines Research Center, and/or the National Archives and Records Administration (NARA). The events, however, are clearly documented in the Veteran's military personnel records. In addition, the Veteran's service treatment records indicate that on the March 1998 clinical examination for retirement from service, the Veteran's psychiatric health was evaluated as normal; however, the summary of defects and diagnoses noted situational stress with secondary insomnia. Although the record is replete with notations of "reported symptoms consistent with PTSD" and "follow up for chronic PTSD," there is no actual diagnosis of PTSD that conforms to DSM-5. The Board notes that the Veteran submitted a Mental Residual Functional Capacity Assessment completed by Dr. Restar; and although there is a notation at the top of the page that says, "Depression, Anxiety, PTSD," the diagnosis rendered in the assessment was adjustment disorder with depressed mood and panic disorder without agoraphobia. The Veteran has also been diagnosed as having panic disorder, anxiety, and alcohol use disorder. The Veteran presented testimony at the March 2021 Board hearing that he had panic attacks during service which have continued since service. The Board cannot make a fully informed decision on the issue because no VA examiner has provided an opinion on the etiology of the Veteran's current psychiatric disorder. 8. Entitlement to service connection for hearing loss With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (hereafter "the Court"), has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 then operated to establish when a hearing loss could be service connected. Hensley, 5 Vet. App. at 159. For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran underwent VA examination in January 2015 at which time the examiner noted that onset of problems hearing was three years prior, more than 20 years after separation from service. The examiner noted that there was not a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hertz for either ear. The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner noted that there was no hearing loss present according to VA standards, that there was no significant shift in hearing beyond test variability in either ear from enlistment to separation or that day, and that there was evidence of no permanent auditory damage from conceded noise exposure on active duty. The examiner also noted that the onset of problems hearing was three years prior. At his March 2021 Board hearing, the Veteran testified that he was exposed to cannon fire for the last 16 years of his military career, sometimes for 15 to 20 days at a time and once for 45 days. The Veteran also testified that during service, he experienced what he called a constant tone, like a prong sound. The Veteran was asked if his hearing loss had gotten worse since 2015. The Veteran replied, "It's still here. ... I still got the ringing. I still got the sound." When asked if he had symptoms of hearing loss, the Veteran replied that he did. There appears to be some confusion as to when the Veteran noticed hearing loss. In addition, it appears that the Veteran's hearing loss may have increased in severity as to reach the level required for a hearing disability for VA purposes. As such, an additional VA examination is needed to address the etiology of any current hearing loss. 9. Entitlement to service connection for tinnitus The January 2015 VA examiner found that the Veteran's tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss. Because a decision on the remanded issue of entitlement to service connection for hearing loss could significantly impact a decision on the issue of entitlement to service connection for tinnitus, the issues are inextricably intertwined. As such, a remand of this claim is also required. 10. Entitlement to service connection for a cervical spine disability The Veteran's service treatment records indicate that in December 1992, he reported neck pain for one night. After physical examination, the Veteran was diagnosed as having possible wry neck. On the March 1998 clinical examination for retirement from service, the Veteran's neck was evaluated as normal. At the December 1998 VA examination, the Veteran's head and neck were within normal limits. X-rays in June 2017 showed moderate multilevel degenerative disc disease of the cervical spine. The Veteran presented testimony at the March 2021 Board hearing that he had neck "cracking" during service which had "pretty much" continued since service along with neck stiffness. The Board cannot make a fully informed decision on the issue because no VA examiner has provided an opinion on the etiology of the Veteran's current cervical spine disorder. 11. Entitlement to service connection for OSA The Veteran's service treatment records are absent complaints, findings or diagnoses of OSA during service. On the Report for Medical History completed by the Veteran in March 1998 in conjunction with his retirement physician, he noted having frequent trouble sleeping. On the clinical examination for retirement from service in March 1998, the summary of defects and diagnoses noted insomnia secondary to situational stress. The Veteran was diagnosed as having OSA in March 2016 after a sleep study was performed when clinical suspicion aroused due to complaints of snoring, apneas, daytime sleepiness, and BMI 35.9; he is being treated with a continuous positive airway pressure (c-pap) machine. The Veteran presented testimony at the March 2021 Board hearing that he had loud snoring then stops snoring and takes a quick breath. When asked if he noticed the symptoms before 2016, the Veteran replied, "I can't answer that." The Veteran testified that his physical disabilities restrict his activity which led to weight gain which led to OSA. In the alternative, the Veteran's attorney noted that the Veteran was prescribed tizanidine, a muscle relaxant, that is noted to worsen or cause OSA. The record indicates that the Veteran's BMI of 35.9 was a factor that aroused clinical suspicion of OSA and that he was counseled to lose wight and to avoid medications with sedating or muscle relaxant properties. Because a decision on at least one of the remanded issues could significantly impact a decision on this issue, the issues are inextricably intertwined. As such, a remand of the claim is required. 12. Entitlement to a TDIU Finally, because a decision on the remanded issues could significantly impact a decision on this issue, the issues are inextricably intertwined. As such, a remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his right shoulder, thoracolumbar spine, and cervical spine disorders. 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 examiner is asked to provide an opinion as to (i) whether the Veteran has a chronic right shoulder disability that is at least as likely as not related to service, to include September diagnosis of right latissimus dorsi strain and February 1993 assessment of strain. (ii) whether the Veteran's current thoracolumbar spine disability at least as likely as not related to service, to include May 1994 diagnosis of mechanical low back pain with spasm. (iii) whether the Veteran's current cervical spine disability at least as likely as not related to service, to include December 1992 diagnosis of possible wry neck. Provide a rationale to support the opinions. In providing the requested opinions, consider the Veteran's description of his in-service injuries and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's hypertension at least as likely as not had its onset in service, had its onset within one year of service separation, or is related to service, to include his in-service elevated blood pressure readings. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include situational stress with secondary insomnia documented at the time of the March 1998 clinical examination for retirement from service. Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination for his claimed hearing loss disability. The examiner must review the claims file. The examiner is asked to address whether the Veteran's hearing loss is at least as likely as not related to service, including conceded noise exposure and/or in-service ear infections. (Continued on the next page) Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service acoustic trauma and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.