Citation Nr: 21041642 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 20-15 990 DATE: July 9, 2021 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for right lower extremity peripheral neuropathy is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for left lower extremity peripheral neuropathy is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for sleep apnea is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for hypertension is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for drug/chemical abuse dependency is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for a mental health issue is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for a lower back condition is granted. Entitlement to service connection for a lumbar spine disorder is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for polysubstance dependency is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. In an August 2011 rating decision, the Regional Office (RO) denied entitlement to service connection for right and left lower extremity peripheral neuropathy, sleep apnea, hypertension, drug/chemical abuse dependency, and a mental health issue; a February 2013 rating decision found that new and material evidence had not been received to reopen the claims for service connection for right and left lower extremity peripheral neuropathy. 2. Evidence associated with the record since the August 2011 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims of entitlement to service connection for right and left lower extremity peripheral neuropathy, sleep apnea, hypertension, polysubstance dependency, and an acquired psychiatric disorder. 3. In a February 2013 rating decision, the RO denied entitlement to service connection for a lower back disability; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 4. Evidence associated with the record since the February 2013 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a lower back disability. 5. The Veteran's currently diagnosed lumbar spine disorder is etiologically related to active service. CONCLUSIONS OF LAW 1. The August 2011 rating decision denying the Veteran's claims for service connection for, in pertinent part, hypertension, sleep apnea, nerve damage in the legs and feet, mental health issue, and drug/chemical abuse dependence is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 2. The February 2013 rating decision denying the Veteran's petition to reopen a claim for service connection for nerve damage in the legs and feet is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for right lower extremity peripheral neuropathy. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for left lower extremity peripheral neuropathy. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 5. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for sleep apnea. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 6. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for hypertension. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 7. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for drug/chemical abuse dependency. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 8. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 9. The February 2013 rating decision denying the Veteran's claims for service connection for, in pertinent part, a lower back disability is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 10. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for a lower back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 11. The criteria for service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1973 to June 1976. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. The record was held open for 90 days following the hearing to allow for the submission of additional evidence and argument. In a May 2021 submission, the Veteran's attorney indicated that they were unable to obtain additional treatment records for the Veteran. Petitions to Reopen Generally, a claim which has been denied in an unappealed Board decision or an unappealed agency of original jurisdiction (AOJ) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be new and material evidence, the evidence must not be cumulative or redundant, and must raise a reasonable possibility of substantiating the claim, which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question as new claims). That is, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Lower Extremity Peripheral Neuropathy The AOJ denied the Veteran's claims of service connection for right and left lower extremity peripheral neuropathy in an August 2011 rating decision, finding that right and left lower extremity peripheral neuropathy did not occur in and was not caused by service. Evidence considered in this decision included service treatment records as well as post-service VA and private treatment records. The Veteran was provided notice of this decision and his appellate rights in an August 2011 letter but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). The issue of entitlement to service connection for right and left lower extremity peripheral neuropathy was subsequently readjudicated in February 2013 and reopening of the claim was denied based on a finding that new and material evidence had not been presented. Evidence considered in the February 2013 rating decision includes post-service VA treatment records. The Veteran was provided notice of this decision and his appellate rights in a February 2013 letter but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103. In connection with the current claims, the AOJ reopened the claims for service connection for right and left lower extremity peripheral neuropathy based in part on new treatment records as well as an October 2012 VA examination related to the Veteran's and peripheral neuropathy. The Board also finds that new and material evidence has been presented and will reopen the claims. Sleep Apnea, Hypertension and Drug/Chemical Abuse Dependency The AOJ denied, in pertinent part, the Veteran's claims of service connection for hypertension, sleep apnea, and a drug/chemical abuse dependency in an August 2011 rating decision, finding that these disabilities did not occur in and were not caused by service. Evidence considered in this decision included service treatment records as well as post-service VA and private treatment records. The Veteran was provided notice of this decision and his appellate rights in an August 2011 letter but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). In connection with the current claims, the AOJ reopened the claims for service connection for hypertension, sleep apnea, and drug/chemical abuse dependence based in part on new treatment records as well as an October 2013 VA examination related to the Veteran's mental health. The Board also finds that new and material evidence has been presented and will reopen the claims. Mental Health Issue The AOJ denied the Veteran's claims of service connection for a mental health issue in an August 2011 rating decision, finding that the Veteran did not have a diagnosis of a mental health condition, aside from polysubstance dependence. Evidence considered includes the Veteran's service treatment records, VA treatment records and a November 2010 VA examination. The Veteran was provided notice of this decision and his appellate rights in an August 2011 letter but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, no additional evidence was received within the one-year appeal period, and no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). The evidence received since the August 2011 rating decision includes evidence that is both new and material to the claim. For example, treatment records show reports of positive depression screening and the Veteran testified at his February 2021 hearing before the Board that he experienced depression and anxiety. This new evidence addresses the reason for the previous denial; that is, that the Veteran did not have a diagnosis of an acquired psychiatric disorder. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Lower Back Condition The AOJ denied the Veteran's claim of service connection for a lower back condition in a February 2013 rating decision, finding that a lower back disability was neither incurred in nor caused by service. Evidence considered in this rating decision included the Veteran's service treatment records as well as post VA and private treatment records. The Veteran was provided notice of this decision and his appellate rights in a February 2013 letter but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, no additional evidence was received within the one-year appeal period, and no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). In connection with the current claim, the RO reopened the claim for service connection for a lower back condition based in part on new treatment records related to the Veteran's lower back. Moreover, a May 2021 private back examination report was added to the record. The Board also finds that new and material evidence has been presented and will reopen the claim. Service Connection Lumbar Spine The Veteran asserts that he has a lumbar spine disorder that is related to service. Specifically, the Veteran testified that he pulled his back muscles while working with mechanics in the motor pool. In a May 2021 private opinion, Dr. J.C. diagnosed the Veteran with chronic lumbar derangement. The physician opined that the Veteran's lumbar spine disorder was related to an in-service injury. The physician reasoned that his opinion was based on a review of the Veteran's medical records, as well as the fact that the Veteran sprained his back in 1975, and pain has been continuous since that time. The Board finds that the May 2021 private opinion report is adequate because the examiner reviewed the claims file and discussed relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds that the May 2021 examination and opinion report is the most probative evidence of record. The Board acknowledges that in February 2013, a VA examiner diagnosed the Veteran with lumbar spine degenerative disc disease and L5/S1 spinal stenosis and opined that the Veteran's lumbar spine disorder was less likely than not related to service. However, the February 2013 opinion carries no probative weight as it does not contain adequate rationale. See Nieves-Rodriguez v. Peake, supra. In this regard, the examiner indicated that the in the absence of medical records showing an in-service back injury, he was unable to provide an opinion without resorting to speculation. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). This opinion is therefore being afforded little, if any, probative weight. Thus, the Board finds that the Veteran has a lumbar spine disorder that is related to his period of active service. In this regard, the Veteran has current diagnoses of lumbar spine degenerative disc disease and L5/S1 spinal stenosis. Moreover, the May 2021 private provider opined that the Veteran's lumbar spine disorder is related to his period of active service. The Board notes that it is prohibited from remanding for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 7 Vet. App. 305, 312 (2003). Giving the Veteran the benefit of the doubt, the Board finds that preponderance of the evidence supports the claim and entitlement to service connection for a lumbar spine disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND The Board finds that additional information is required before the remaining claims on appeal are decided. Service Connection Bilateral Hearing Loss and Tinnitus The Veteran asserts that his current bilateral hearing loss and tinnitus str a result of in-service noise exposure. In March 2018, the Veteran was afforded a VA audiology examination and diagnosed with bilateral hearing loss and tinnitus. The examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by his active military service as the evidence was against a finding of a noise injury as there was no significant threshold shift in hearing or hearing loss in either ear during active service. The Board finds that the March 2018 VA examination report is inadequate to decide the claims. In this regard, the opinion does not negate the fact that a chronic disability actually onset during service as shown by the Veteran's competent and credible statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). Moreover, the Board notes that the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service as opposed to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As the opinions are not adequate, they cannot serve as the basis of denials of entitlement to service connection. Therefore, the Board finds that a remand is necessary to obtain adequate medical opinions regarding the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. Lower Extremity Peripheral Neuropathy The Veteran asserts that he has right and left lower extremity peripheral neuropathy as a result of his active duty service. Post-service treatment records show complaints of decreased lower extremity sensation as well as diagnoses of right and left upper extremity peripheral neuropathy. To date, no VA medical opinion has been obtained with regard to the Veteran's bilateral lower extremity peripheral neuropathy. Therefore, the Board finds that a VA medical opinion is warranted to address the nature and etiology of his right and left lower extremity peripheral neuropathy. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hypertension The Veteran asserts that he has hypertension as a result of his active duty service. Post-service treatment records show a diagnosis of hypertension. To date, no VA medical opinion has been obtained with regard to the Veteran's hypertension. Therefore, the Board finds that a VA medical opinion is warranted to address the nature and etiology of his hypertension. See McLendon v. Nicholson, supra. Acquired Psychiatric Disorder and Polysubstance Dependency The Veteran asserts that he has an acquired psychiatric disorder as a result of his active duty service. Specifically, the Veteran indicated that he began experiencing depression following the shooting death of his friend while he was stationed in Germany, which has been continuous since that time. Post-service treatment records show that the Veteran experiences depression. The Board notes that the Veteran was afforded a VA mental health examination in November 2010. However, at that time, the examiner did not indicate whether the Veteran had a diagnosis of an acquired psychiatric disorder aside from polysubstance dependency and the examiner report showed that the Veteran was not tested for posttraumatic stress disorder (PTSD). Therefore, the Board finds that a VA medical opinion is warranted to address the nature and etiology of his claimed acquired psychiatric disorder. See McLendon v. Nicholson, supra. The Veteran asserts that he has a chemical abuse dependency that is related to service. Specifically, the Veteran indicated that he began using illicit drugs as a coping mechanism following the shooting death of his friend while he was stationed in Germany. The Board notes that the statutory preclusion of direct service connection for substance abuse does not impede establishing service connection for alcohol or drug abuse disability secondary to service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir 2001). Therefore, the claim for chemical abuse dependency is remanded. Obstructive Sleep Apnea The issue of entitlement to service connection for obstructive sleep apnea is inextricably intertwined with the claim of entitlement to service connection for an acquired psychiatric disorder remanded herein, as the Veteran has claimed that obstructive sleep apnea may be secondary to an acquired psychiatric disorder. Hence, a determination on this claim should be deferred pending final disposition of the claim for entitlement to service connection for an acquired psychiatric disorder. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records dated from April 2018 to the present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an otolaryngologist, or other qualified medical examiner, to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. The need for an audiological examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is it is at least as likely as not (50 percent or better probability) that the Veteran's bilateral hearing loss had its onset during his active service, or is otherwise etiologically related to such service, to include whether any injury due to loud noise exposure experienced therein contributed to his bilateral hearing loss. The examiner should comment on the significant, if any, of the August 1974 complaints of right ear pain and trouble hearing. (B) Is it is at least as likely as not (50 percent or better probability) that the Veteran's tinnitus had its onset during his active service, or is otherwise etiologically related to such service, to include whether any injury due to loud noise exposure experienced therein contributed to his tinnitus. The examiner should comment on the significant, if any, of the August 1974 complaints of right ear pain and trouble hearing. The examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms, to specifically include the Veteran's reports that he experienced decreased hearing and ringing in his ears during service. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of his right and left upper extremity radiculopathy. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that right and left upper extremity radiculopathy had its onset during his active service or is otherwise etiologically related to such service? (B) Is at least as likely as not (50 percent or better probability) that right and left upper extremity radiculopathy was caused OR aggravated by his service-connected lumbar spine disorder? If the answer to any of the above is yes, the examiner should address the current level of severity of all impairment resulting from his right and left upper extremity radiculopathy. The examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 4. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran's hypertension. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that hypertension had its onset during his active service or is otherwise etiologically related to such service? The examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 5. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of any currently present acquired psychiatric disorders, to include PTSD and depression. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the examination results and review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the appeal, or proximate thereto. Then, for each acquired psychiatric disorders identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any identified disability is had its onset during the Veteran's active service, or is otherwise etiologically related to such service. The examiner should address the significance, if any, of the April 1976 reports of frequent trouble sleeping. If PTSD, or a trauma- or stressor-related disorder is diagnosed, the examiner should list all traumatic events contributing to that diagnosis. The examiner should also offer an opinion as to whether the Veteran's polysubstance dependency is at least as likely as not (50 percent or greater probability) due to or the result of any psychiatric disability. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. (Continued on the next page) 6. Following the completion of the above, the Agency of Original Jurisdiction should consider whether additional development is warranted as a result of the above (e.g., development for obstructive sleep apnea). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher O'Donnell, 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.