Citation Nr: 21040756 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-38 618 DATE: July 6, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from November 1978 to May 1982. This matter comes before the Board of Veterans' Appeals on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter Agency of Original Jurisdiction (AOJ)). The Veteran presented testimony before the undersigned Veterans Law Judge during a January 2021 virtual Board hearing. A transcript of the hearing has been associated with the record. The Veteran initially filed claims for service connection for sleep apnea and a lumbar spine disability in December 2011, which were initially denied in a December 2013 rating decision. While the Veteran submitted new claims for sleep apnea and a lumbar spine disability following the rating decision, he did not appeal that decision nor submit any new and material evidence within one year following notice of the decision. Ordinarily, this would mean that the December 2013 rating decision is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103. Nevertheless, a review of the record reveals that additional VA treatment records that were generated during the appeal period were added to the claims file following the issuance of the December 2013 rating decision and were not considered by the AOJ when it issued the December 2013 rating decision. VA regulations provide that new and material evidence received prior to the expiration of the period for appealing a rating decision will be considered as having been filed in connection with the pending claim. 38 C.F.R. § 3.156(b). When evaluating the finality of a rating decision, 38 C.F.R. § 3.156(b) requires VA to evaluate records and submissions received during the relevant appeal period and determine whether they contain new and material evidence relevant to a pending claim. See Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with pervious evidence of record, relates to an unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (noting the low threshold for new and material evidence is satisfied where the evidence is new and raises a reasonable possibility of substantiating the claim). If new and material evidence is received, constructively or actually, during the appellate period, VA must readjudicate the claim in a supplemental decision. Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015) (stating that a new decision must be issued that is "directly responsive" to the new evidence). If VA fails to readjudicate the claim in light of the new and material evidence submitted, the claim remains pending until such readjudication occurs. See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) (stating that because VA failed to readjudicate a claim in light of new and material evidence received during the appellate period, the claim remained pending despite an intervening adjudication). Notably, the U.S. Court of Appeals for the Federal Circuit has held that all VA treatment records created within one year of a decision are constructively before the benefits adjudicator and that VA treatment records "are always reasonably related to a veteran's claim." See Lang v. Wilkie, 971 F.3d 1348, 1356 (Fed. Cir. 2020). In this case, the record reflects that VA treatment records pertaining to sleep apnea and a lumbar spine disability were generated in December 2010 and thereafter, and thus fall within the appeal period of the Veteran's initial claims for sleep apnea and a lumber spine disability. While the VA treatment records were not added to the Veteran's claims file until February 2014, the treatment records were generated and, thus, within VA's constructive possession prior to the December 2013 rating decision. Further, the VA treatment records were related to the claims as they described both a history of back and sleep problems. See December 2010 and December 2011 VA treatment records. Accordingly, the December 2013 rating decision was not final and the claims for sleep apnea and a lumbar spine disability remained pending until the July 2014 rating decision which readjudicated the claims. See 38 C.F.R. § 3.156(b). Lumbar Spine During the January 2021 Board hearing, the Veteran reported that he has had continuous back pain after falling off of a tank during service. May 1980 service treatment records reflect that the Veteran sought treatment for low back pain after a tactical vehicle accident. The examiner noted that x-rays showed a possible compression fracture of the lumbar spine, however the x-ray report was not included with the service treatment records. The Veteran was diagnosed with lumbosacral strain and placed on bedrest. At separation, he specifically denied recurrent back pain. In a January 2013 VA examination report, the examiner opined that it was unlikely that the Veteran's current low back symptoms have a medical connection to events that occurred in service. The examiner cited to December 2010 and December 2011 VA treatment records where the Veteran denied a history of back pain or reported that he had a history of minor back problems. The examiner also indicated that she could not locate documentation of persistent abnormality since service, and that it was more likely than not that current symptoms in the back were the consequences of the Veteran's current activities and the effects of aging and weight gain. In an April 2014 VA examination, the Veteran was noted to have a diagnosis of lumbar strain, however, the examiner found that the Veteran did not have chronic strain in service and it was not shown to have continued for over 34 years since leaving service. A June 2016 MRI of the lumbar spine noted moderate degenerative changes with disc protrusion at L4-5. In a July 2018 radiological report, the Veteran was noted to have degenerative disc disease at L4-L5, and degenerative joint disease of the lumbar spine. The Veteran also submitted a private medical opinion in February 2021 issued by L.R. (initials used to protect privacy), the Veteran's private physician. L.R. concluded that it was more likely than not that the Veteran's chronic recurrent thoracic condition was the direct result of the events that occurred during service, however, there was no rationale provided with the opinion. The Board further notes that the Veteran denied recurrent back pain at separation. Given the conflicting evidence in the record, as well as new evidence that the Veteran has been diagnosed with arthritis, the Board finds that a remand is necessary to obtain an addendum opinion that addresses the nature and etiology of the Veteran's lumbar spine disability. Neck During the January 2021 Board hearing, the Veteran also reported that he had injured his neck as a result of the tank accident in service and that he has had continuous pain since then. December 1980 service treatment records also show that the Veteran sought treatment after he injured his neck during a PT session. He reported pain in both the right and left side of his neck, and was diagnosed with acute cervical strain. In an April 2014 VA examination, the Veteran was diagnosed with degenerative arthritis of the cervical spine. The examiner concluded that it was less likely than not that the Veteran's neck disability was due to service because he did not have a chronic neck diagnosis in service. A March 2017 MRI of the cervical spine noted multilevel degenerative changes of the cervical spine with some neuroforaminal narrowing at C3-C6. The Veteran also submitted a private medical opinion in February 2021 issued by L.R. the Veteran's private physician. L.R. concluded that it was more likely than not that the Veteran's cervical condition was the direct result of the events that occurred during service, however, there was no rationale provided with the opinion. The Board finds that additional opinion is necessary to address whether the mechanism of injury during service was capable of causing the current degenerative changes. Knee During the January 2021 Board hearing, the Veteran reported that he had injured his right knee playing football in service and that he has had continuous pain in his knee since then. August 1979 service treatment records document that the Veteran sought treatment for his right knee after playing football and was diagnosed with a contusion and mild right knee sprain. The Veteran denied a trick or locked knee at separation. In an April 2014 VA examination, the Veteran was diagnosed with right knee degenerative joint disease. The examiner concluded that it was less likely than not that the Veteran's right knee disability was due to service because he did not have a chronic right knee diagnosis in service. The examiner explained that the Veteran's contusion of the right knee in service was of the soft tissue, and his current arthritis involves the bone. The Veteran also submitted a private medical opinion in February 2021 issued by L.R. the Veteran's private physician. L.R. concluded that it was more likely than not that the Veteran's right knee condition was the direct result of the events that occurred during service, however, there was no rationale provided with the opinion. The Board finds that additional opinion is necessary to address whether the mechanism of injury during service was capable of causing the current degenerative changes. PFB During the January 2021 Board hearing, the Veteran reported that he developed shaving bumps in service. He indicated that he avoided shaving and grew a beard following service in order prevent getting shaving bumps. During the hearing, the Veteran reported that he had recently shaved his beard and was experiencing dryness and itching. He was instructed to submit a photograph of himself when his symptoms manifested. In a March 2021 photograph, the Veteran appears to have raised bumps on his face. Service treatment records from January 1979, April 1979, June 1979, and January 1982 all document that the Veteran experienced having bumps and lesions after shaving. In an April 2014 VA examination, the examiner noted that the Veteran did not have any evidence of active PFB. However, when a disability is not active at a VA examination, the current disability prong of a service connection claim is still met if the disability was active at or near the time a claim for VA disability compensation is filed or anytime during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board further observes that the Veteran is competent to report readily observable symptoms. Given the recent appearance of the Veteran's PFB, documented in the March 2021 photograph, the Board finds that a remand is necessary to obtain an addendum opinion that addresses the nature and etiology of the Veteran's PFB. Sleep Apnea During the January 2021 Board hearing, the Veteran asserted that his sleep apnea was caused or aggravated by his service-connected PTSD. He indicated that his sleep apnea worsened during his PTSD flare-ups. The record does not reflect that the Veteran has been provided with a VA examination for his sleep apnea claim. Accordingly, a remand is necessary to obtain a VA examination that addresses the nature and etiology of the Veteran's sleep apnea. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain any outstanding private and VA treatment records pertaining to the Veteran's lumbar spine disability, neck disability, PFB, right knee disability, and sleep apnea. Specifically, during the January 2021 Board hearing, the Veteran reported that VA doctors had attributed his knee pain to service. In a July 2019 VA treatment record, the Veteran reported getting treatment outside the VA for his joints. The AOJ should attempt to locate and obtain these records. During the January 2021 hearing, the Veteran's representative also referenced a medical journal article pertaining to sleep apnea and PTSD. A review of the record does not contain that article. The AOJ should attempt to obtain this evidence from the Veteran. 2. The AOJ should contact any appropriate repository of records and attempt to obtain any x-ray or radiological reports taken during the Veteran's service, including x-rays referenced in the May 1980 service treatment record which discusses a possible compression fracture. If these records cannot be located or are unavailable, this should be documented for the record. 3. After the above development is completed, the AOJ should obtain an addendum opinion addressing the nature and etiology of the Veteran's lumbar spine disability. An additional physical examination should be performed only if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's lumbar spine disability, to include degenerative arthritis, manifested in or is otherwise causally or etiologically related to his military service. The examiner should accept the Board's factual finding that the most credible lay evidence reflects that the Veteran did not experience recurrent back pain at the time of separation, and should specifically explain whether there is a current radiologic evidence of a history of compression fracture of the thoracolumbar spine. In rendering this opinion, the examiner should discuss how degenerative arthritis generally presents or develops. If the examiner finds any gap in time between the Veteran's military service and the onset of the disorder to be probative, he or she should provide an explanation of its medical significance. In rendering his or her opinion, the examiner should consider the following: 1) the May 1980 service treatment record which documents a possible compression fracture and the denial of recurrent back pain at separation; 2) the June 1980 service treatment record which documents a diagnosis of lumbosacral strain; 3) the June 2016 MRI and July 2018 radiological report which document degenerative changes of the lumbar spine; and 4) the February 2021 private physician opinion. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should then obtain an addendum opinion addressing the nature and etiology of the Veteran's neck disability. An additional physical examination should be performed only if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's neck disability, to include degenerative arthritis, manifested in or is otherwise causally or etiologically related to his military service. In rendering this opinion, the examiner should discuss how degenerative arthritis generally presents or develops, and whether the mechanism of injury in service is capable of producing the extent of degenerative changes. In rendering his or her opinion, the examiner should consider the following: 1) the December 1980 service treatment record which documents a diagnosis of cervical strain; and 2) the March 2017 MRI which documents degenerative arthritis of the cervical spine; and 3) the February 2021 private physician opinion. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. The AOJ should then obtain an addendum opinion addressing the nature and etiology of the Veteran's right knee disability. An additional physical examination should be performed only if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's right knee disability, to include degenerative arthritis, manifested in or is otherwise causally or etiologically related to his military service. The examiner should accept the Board's factual finding that the most credible lay evidence reflects that the Veteran did not experience a trick or locked knee at the time of separation, and explain whether the mechanism of injuries in service could be capable of causing the currently diagnosed disorders. In rendering this opinion, the examiner should discuss how degenerative arthritis generally presents or develops. If the examiner finds any gap in time between the Veteran's military service and the onset of the disorder to be probative, he or she should provide an explanation of its medical significance. In rendering his or her opinion, the examiner should consider the following: 1) the August 1979 service treatment record which documents a diagnosis of right knee strain; and 2) the February 2021 private physician opinion. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. The AOJ should then obtain an addendum opinion addressing the nature and etiology of the Veteran's pseudofolliculitis barbae (PFB). An additional physical examination should be performed only if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's PFB manifested in or is otherwise causally or etiologically related to his military service. In rendering his or her opinion, the examiner should consider the following: 1) the January 1979, April 1979, June 1979, and January 1982 service treatment records documenting lesions and shaving bumps; 2) the Veteran's testimony during the January 2021 hearing that he experiences symptoms when he shaves; 3) the March 2021 photograph submitted by the Veteran; and 4) the VA examination findings and opinions of record. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 7. The AOJ should then schedule the Veteran for VA examination to determine the nature and etiology of his sleep apnea. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea manifested in or is otherwise causally or etiologically related to his military service. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea is either caused or aggravated (a medically discernible increase in frequency, duration and/or severity, even if temporary, above the degree associated with that expected from his baseline sleep apnea alone) by his service-connected PTSD. In rendering his or her opinion, the examiner should consider the Veteran's testimony during the January 2021 hearing that his sleep apnea is worsened during PTSD flare-ups. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 8. The AOJ should review the medical opinions to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. The AOJ should then conduct any other development that may be indicated as a consequence of the actions taken in the preceding paragraphs. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Saikh, 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.