Citation Nr: 21041676 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-02 132 DATE: July 9, 2021 ORDER The application to reopen the claim of entitlement to service connection for a left hip disability is granted. The application to reopen the claim of entitlement to service connection for a right hip disability is granted. The application to reopen the claim of entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a scalp condition is denied. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. In an unappealed March 2009 decision, the RO denied service connection claims for right and left hip disabilities and new and material evidence was not received within the one-year appeal period. 2. The evidence received since the final March 2009 RO decision relates to an unestablished fact necessary to substantiate the claims of service connection for right and left hip disabilities and raises a reasonable possibility of substantiating the claims. 3. In an unappealed March 2009 decision, the RO denied the claim for sleep apnea and new and material evidence was not received within the one-year appeal period. 4. Evidence received since the March 2009 decision includes information that was not previously considered, but which does not relate to unestablished facts necessary to substantiate the claim of service connection for sleep apnea. 5. The Veteran's scalp condition was not incurred during service, it did not manifest from service, and it is not due to exposure to hazards in the Persian Gulf. CONCLUSIONS OF LAW 1. The March 2009 RO decision denying service connection for a left hip disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. As additional evidence received since the March 2009 denial is new and material, the criteria for reopening the claim for service connection for a left hip disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The March 2009 RO decision denying service connection for a right hip disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. As additional evidence received since the March 2009 denial is new and material, the criteria for reopening the claim for service connection for a right hip disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The March 2009 RO decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 6. The evidence received since the March 2009 RO decision is not new and material and, therefore, is insufficient to reopen the claim of service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for entitlement to service connection for a scalp condition have not been met. 38 U.S.C. §§ 1110, 1111, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.317, 4.3, 4.118. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to August 1992 and from September 2001 to March 2002 followed by service in the Kansas Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed that decision. In August 2020, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Petition to reopen service connection claims for bilateral hip disability The Veteran's claims for service connection for bilateral hip disability were previously considered and denied in a March 2009 rating decision, because the available service treatment records (STRs) did not contain any complaints, treatment, or diagnoses of any hip conditions. Although notified of the March 2009 denials in a respective letter dated that same month, the Veteran did not initiate an appeal with respect to his hip claims. See 38 C.F.R. §§ 20.200, 20.201. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial of the claims, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Therefore, the March 2009 denial of the respective claims are final as to the respective evidence then of record and are not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The applicable regulation defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. New evidence pertinent to this claim includes the Veteran's lay and written assertions. Specifically, at the August 2020 Board hearing. The Veteran testified that his current bilateral hip pain began in service when his military occupational specialty (MOS) as wire systems installer required him to climb up and down telephone poles and even trees with very heavy equipment. In particular, the Veteran testified that he carried wiring equipment weighing around 120 pounds which caused a lot of stress on his hips (as well as his wrists, shoulders, and knees) resulting in his current hip pain. See Board hearing transcript, pp. 6-7. Given the "low threshold" standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the March 2009 denial is new and material within the meaning of 38 C.F.R. § 3.156(a), warranting reopening of service connection claims for bilateral hip disabilities. Under these circumstances, the Board concludes that the criteria for reopening the claims for service connection for bilateral hip disabilities are met. 2. Petition to reopen the service connection claim for sleep apnea Regarding the Veteran's petition to reopen his claim for sleep apnea, the Board notes that the claim was previously considered and denied in a March 2009 rating decision, because his STRs did not contain any complaints, treatment, or diagnoses of any sleep apnea. Moreover, the RO found that the Veteran's sleep apnea was not related to his service-connected sinusitis with headaches. The Veteran was notified of the RO's March 2009 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the March 2009 decision became final. See 38 U.S.C. § 7105 (c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. Subsequent to the March 2009 decision, the record now includes VA treatment records dated in September 2020 confirming a diagnosis for sleep apnea. In addition, at his Board hearing, the Veteran contended that his sleep apnea is secondary to his acute sinusitis. See Board hearing transcript, p. 15. He cited to a piece of medical evidence in another Board decision as evidence to support the theory of secondary service connection. However, in its March 2009 decision the RO considered whether the Veteran's sleep apnea was related to his service-connected sinusitis and concluded that it was not. Further, it is noted that Board decisions are not precedential and that the medical evidence cited to did not relate to the Veteran but another appellant, and therefore while new this evidence is not material. Overall, the Board finds that the above-cited evidence is either duplicative or cumulative of the evidence previously of record, or, if new, is either not relevant to the claim of service connection for sleep apnea, or does not provide a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that, even when considering the "low threshold" for determining whether evidence is new and material pursuant to Shade, 24 Vet. App. at 110, the criteria for reopening the claim of service connection for sleep apnea are not met. Furthermore, while VA has an obligation to assist the Veteran in the development of his claim, it is the Veteran's responsibility to present and support a claim of service connection. 38 U.S.C. § 5107 (a); see also Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009). As the Veteran has not identified or presented any new and material evidence pertaining to his claim of service connection for sleep apnea, the application to reopen this claim must be denied. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim under consideration, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 3. Entitlement to service connection for a scalp condition Service connection is warranted for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As it relates to a qualifying chronic disability, service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1) (VA has issued an interim final rule extending this date to December 31, 2021). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the VA Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2),(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). VA amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans, effective July 13, 2010. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the VA Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multisymptom illnesses' as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 1,997 (Oct. 7, 2010). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (d)(2). The Persian Gulf War period runs from August 2, 1990 to a date not later than December 31, 2021. 38 U.S.C. § 101(33). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran contends that his scalp condition is related to service. Specifically, he testified that he did not have issues with his scalp until he returned from Desert Storm. See Board hearing transcript, p. 12. The Veteran's STRs do not document any complaints, treatment, or diagnosis of any scalp condition. Post-service, VA treatment records dated in April 2018 note that the Veteran has lichen simplex chronicus (LSC) on his scalp. After a review of all of the evidence, the Board finds that service connection for a scalp condition is not warranted. While the Veteran asserted generally that he did not notice any scalp issues until he returned home after Operation Desert Storm, the Gulf War provisions are not for application as the scalp condition has been attributed to a known diagnosis, specifically LSC. The Board notes that to the extent the Veteran relates the onset of his scalp condition to possible exposure to environmental toxins in the Gulf War, this is not competent evidence, as establishing the etiology of a scalp condition such as LSC requires medical knowledge, which the Veteran has not shown to possess. Cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim, as there is no probative evidence demonstrating that the Veteran suffers from a scalp condition resulting from Gulf War syndrome. Therefore, entitlement to service connection for a scalp condition is denied. REASONS FOR REMAND The Veteran contended that his bilateral hip disabilities, bilateral wrist disabilities, left shoulder disability, and left knee disability are related to service. Specifically, as noted above, he testified that as a wire systems installer he carried very heavy equipment up and down telephone poles, which also required him to bend, lift, and pull and have caused him his current pain in his wrists, hips, shoulder, and knees. He also stated that he did not have any padding to protect his knees. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's STRs do not document any complaints, treatment or diagnoses of hip, wrist, or shoulder issues. Post-service, VA treatment records dated in November 2017 document the Veteran's diagnosed bilateral hip arthritis and pain. VA treatment records also dated in November 2017 note that the Veteran has degenerative joint disease (DJD) of his wrists, bilaterally. A March 2018 VA examination report noted the medical history of the Veteran's left shoulder issues. He noted a diagnosed left shoulder strain following the Veteran's September 1999 complaint of left shoulder pain, which was made worse with lifting. Regarding his left knee issues, STRs dated in July 1984 reflect that the Veteran complained of chronic knee pain following basic training. At his separation from active service, the Veteran reported no "trick" or locked knee. Post-active service, an August 2002 Kansas Army National Guard report of medical history reflected that the Veteran had bursitis in his knees. VA treatment records dated in May 2009 note that the Veteran has DJD and bilateral knee pain. The Veteran underwent VA knee examination in March 2018, but did not note any left knee diagnoses, nor did she discuss the Veteran's history of DJD and bilateral knee pain. Given the evidence of bilateral hip and wrists disabilities together with his left shoulder and left knee conditions, his competent assertions that he incurred pain in those areas while carrying heavy equipment up telephone poles in service that have persisted since service discharge, and the absence of VA medical opinion regarding these conditions, the Board finds that VA examination is warranted. McLendon, 20 Vet. App. at 86. The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examinations in order to determine the nature and etiology of his claimed bilateral hip disabilities, bilateral wrist disabilities, left shoulder disability, and left knee disability. The examiner should review the entire record, including this REMAND. All necessary studies and tests should be conducted. 2. Following an examination of the Veteran and a review of the Veteran's service treatment records and post-service treatment records, the examiner is asked to answer the following: Identify any current disability related to the Veteran's claimed bilateral hip disabilities, bilateral wrist disabilities, left shoulder disability, and left knee disability. (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that any hip disability(ies) were incurred during or is otherwise related to the Veteran's active service? (b) Is it at least as likely as not (i.e., 50 percent or greater probability) that any wrist disability(ies) was incurred during or is otherwise related to the Veteran's active service? (c) Is it at least as likely as not (i.e., 50 percent or greater probability) that any left shoulder disability was incurred during or is otherwise related to the Veteran's active service? (d) Is it at least as likely as not (i.e., 50 percent or greater probability) that any left knee disability was incurred during or is otherwise related to the Veteran's active service? (Continued on the next page) In providing his or her opinion. the examiner should specifically address the Veteran's competent lay assertions and any current diagnoses regarding his claimed conditions as discussed in the body of the remand above. 3. Thereafter, the AOJ should readjudicate the claims based on the entirety of the evidence. If the claim(s) remain denied, the Veteran and his representative should be issued an SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.