Citation Nr: 21041683 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-55 866 DATE: July 9, 2021 ORDER The petition to reopen the previously denied claim for service connection for a thyroid disability (previously denied as thyroid disease) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a neurological disability of the left lower extremity is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT An unappealed April 2004 rating decision denied service connection for thyroid disease; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The April 2004 rating decision denying the claim for service connection for thyroid disease is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1991 to July 1995. This appeal comes to the Board of Veterans Appeals (Board) from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). An August 2019 Board decision denied the Veteran's (1) petition to reopen the previously denied claim for service connection for a thyroid disability, (2) claim for entitlement to service connection for OSA, (3) claim for entitlement to service connection for a neurological disability of the left lower extremity, and (4) claim for entitlement to service connection for tinnitus. In September 2019, the Veteran's representative submitted a Motion to Vacate on grounds of denial of due process. 38 C.F.R. § 20.1000(a). Arguing, in part, that the Veteran requested a Board hearing prior to the August 2019 Board decision. An October 2019 Board decision subsequently found that, at the time of the Board's August 2019 decision, no hearing had been scheduled for the Veteran and he had not waived his right for a hearing and, accordingly, vacated the August 2019 Board decision. In October 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 90 days for the submission of supporting evidence. In January 2021, the Veteran's representative submitted a 30-day extension request in order to obtain and submit additional evidence and/or argument in support of this appeal. A May 2021 Board letter subsequently found that the representative had not shown good cause for an additional extension of time and, accordingly, denied the motion. The letter noted that an ample amount of time in order to submit additional evidence and/or argument had been provided, to include the 90-day hold following the October 2020 Board hearing; and more than 30 days had elapsed since the January 2021 extension request without VA's receipt of any additional evidence after that request. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a thyroid disability (previously denied as thyroid disease). The Veteran, and his representative, contends that new and material evidence has been submitted to warrant reopening of the claim. The record shows that VA received in October 2003 the Veteran's original claim for service connection for thyroid disease. See VA Form VA 21-526 (October 2003). An April 2004 rating decision denied the claim. In September 2016, VA received the Veteran's claim to reopen the matter. See VA Form 21-526EZ (September 2016). The Board concludes that the April 2004 rating decision denying the claim for service connection for thyroid disease is final; and that new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. Generally, a claim that has been denied in an unappealed RO or Board 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 which 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. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Regardless of whether the agency of original jurisdiction found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Lastly, unless new and material evidence has been submitted, the duty to assist does not attach. Anderson v. Brown, 9 Vet. App. 542 (1996). An April 2004 rating decision denied service connection for thyroid disease because the evidence of record did not show that the Veteran's disability was incurred in or related to service. VA notified the Veteran of this decision in an April 2004 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. At the time of the prior final disallowance, the evidence of record included lay and medical evidence. The medical evidence consisted of service treatment records (STRs), and treatment records. Health questionnaires, dated in 1991, 1993, 1994, and 1995, reveals that the Veteran denied having, or ever having, thyroid disease. In addition, STR, dated in March 1992, reflects that the Veteran complained of a swollen throat, and difficulty swallowing; the assessment/diagnosis was esophagitis. VA treatment record, dated in April 2001, shows that the Veteran reported a past medical history of "swollen thyroid" in 1991. The lay evidence, on the other hand, consisted of statements from the Veteran relating his disability to service. See VA Form 21-526 (October 2003) (revealing that the Veteran reported an onset of thyroid disease in 1992). Evidence associated with the claims file since the prior final disallowance includes lay and medical evidence that does not cure a prior evidentiary defect. Medical evidentiary submissions received by VA since the prior final denial includes, among other things, VA treatment records and private treatment records. The medical evidence, however, continues to show that the Veteran's current thyroid disability did not have its onset during service or that it is related to an in-service injury or disease. Indeed, at most, the evidence reflects a transcription of lay history, which is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is VA or private. LeShore v. Brown, 8 Vet. App. 406 (1995). The lay evidence of record, on the other hand, includes the Veteran's statements and sworn testimony to the effect that he believes that his disability had its onset during service or that it is related to an in-service injury or disease. In this regard, at the Board hearing, the Veteran testified that his disability stemmed from a 1992 in-service incident, in which, he experienced a swelling throat, difficulty swallowing, and difficulty breathing. See Hearing Transcript at 16 (October 2020). This evidence, however, is cumulative of other evidence in the record that was considered by a prior adjudicator. For instance, the October 2003 VA Form 21-526 reflects the Veteran's lay report of the 1992 in-service complaint. Thus, to this extent, the Veteran's lay reports are not new and material as they are, in essence, duplicates of previous lay reports considered by a prior adjudicator. Second, the Veteran is not competent to opine on the etiology of his disability as he lacks the requisite medical expertise to formulate a medical opinion on whether his thyroid disability had its onset during service or that it is related to an in-service injury or disease, to include the 1992 in-service incident. In sum, this is a complex medical determination beyond the ken laypersons that cannot be answered based on observation or analysis of a layperson. Indeed, this is an intricate matter that requires an understanding of the endocrine system. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes that the submitted evidence must be competent; further, the credibility of the submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Exception is made for statements that are inherently incredible or patently untrue. See Duran v. Brown, 7 Vet. App. 216 (1994). Therefore, statements opining on the etiology of the claimed disability are not competent because the Veteran is not shown to be competent to deliver nexus evidence. Given the above discussion, the Board finds that new and material evidence has not been presented to reopen the claim. Accordingly, the petition to reopen the previously denied claim is denied. See 38 C.F.R. § 3.156(a). The benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Board notes that the Veteran may file another claim under the modernized appeal system that became effective in February 2019, which has eliminated the requirement for "new and material evidence" and only requires "new and relevant evidence" (a significantly lower threshold) to readjudicate the matter. REASONS FOR REMAND Aside from the below explicit findings, in remanding these matters, the Board makes no further findings, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for OSA is remanded. 2. Entitlement to service connection for a neurological disability of the left lower extremity is remanded. Issues 1-2. The Veteran contends that his disabilities had their onset during, or are related to, service. With regard to the OSA, the Veteran testified that it had its onset during service or is related to service. In this regard, the Veteran stated that, while on military leave, his mother noticed that he wasn't breathing right, always tired, and that he was having problems with sleeping. With regard to the neurological disability of the left lower extremity, the Veteran argues that it stems from an in-service hamstring injury, which he believes was actually a low back injury that now radiates to his left lower extremity. In support of this contention, the Veteran's representative directs the Board to a lay statement, describing the in-service injury. For reasons explained below, the Board finds that remand is necessary. First, the record reflects that the Veteran has current disabilities. In this regard, VA treatment records reveal treatment and assessments for OSA and radiculopathy of the left lower extremity. Second, the Board finds competent, credible evidence of in-service injury to the left lower extremity. In this regard, the Veteran's STRs reflect complaints for left leg pain. See STR (March 1994). Further, lay statement, submitted by the Veteran's then-Platoon Sergeant, reflects that he injured himself when he stepped into a gopher hole. See Buddy/Lay Statement (February 2018). Accordingly, the Board finds competent, credible evidence of in-service injury to the left lower extremity. Further, with regard to the OSA, the Board also finds competent, credible evidence of in-service injury, described as loud snoring and temporary cessations of breathing while sleeping. In this regard, the Veteran's mother provided a written statement, in which, she observed the Veteran, while sleeping, and noticed that he had loud snoring and temporary cessations of breathing. See Buddy/Lay Statement (November 2020). Accordingly, the Board finds competent, credible evidence of in-service injury, described as loud snoring and temporary cessations of breathing while sleeping. Given the above, the record indicates competent, credible evidence of current disabilities and in-service symptomology. VA, however, has not obtained a medical opinion or examination in these matters. It is noted that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion 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, (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, and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Therefore, given the available evidence and the Veteran's statements and sworn testimony, there is competent, credible evidence of a potential relationship between the Veteran's disabilities and his military service to warrant remand for VA examinations and medical opinions. See McLendon, 20 Vet. App. 79. The Board observes that the evidence needed to trigger VA's duty to furnish a medical opinion is low. 3. Entitlement to service connection for tinnitus is remanded. The Veteran, and his representative, contends that his tinnitus had its onset during service. In this regard, the Veteran testified that while in service he started to notice symptomology of tinnitus. See Hearing Transcript at 9 (October 2020). The Veteran additionally stated that while during service he was constantly exposed to hazardous noise, which he described as aircraft engine noise. For reasons explained below, the Board finds that remand is necessary. VA examination report, dated in December 2016, reveals that the Veteran reported recurrent tinnitus. VA medical opinion, dated in December 2016, reveals that the Veteran's tinnitus was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In support of the conclusion, the opinion notes that the Veteran's STRs are silent for complaints of tinnitus; and his hearing, in both ears, was normal during service and at separation. The Board finds the VA medical opinion is inadequate as the essential rationale for the opinion is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Here, the opinion seems to rely, for the most part, on the absence of documented medical treatment records, during service, showing complaints or treatment for tinnitus. Although the Veteran, as a lay person, is not competent to opine on the etiology of the delay onset of his disability; he is, however, competent to report signs and symptoms of his disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this regard, the December 2016 VA examination report reveals that the Veteran reported an onset of tinnitus in 1994, which he described as intermittent and light. Additionally, at the Board hearing, the Veteran testified to experiencing symptoms of tinnitus while in service. The opinion, however, does not reveal a rationale or explanation discounting the Veteran's competent observations; rather, as evidenced in the opinion, the clinician seems to have, mostly, relied on the absence of documented treatment during service without considering the Veteran's testimony. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). Moreover, certain chronic diseases, such as organic diseases of the nervous system (e.g. tinnitus), will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Thus, the applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). The clinician is not required to accept the Veteran's theory that his military service caused his current respiratory problems, or that he had symptoms associated with any respiratory disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusions. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Given the above, the Board may not rely upon the VA medical opinion in its present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. Accordingly, the Board finds that remand is necessary for an addendum VA medical opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs or symptoms of his OSA, neurological disability of the left lower extremity, and tinnitus, to include from Providence Health and Services. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from May 2017 to the Present. 3. Schedule the Veteran for an examination by an appropriate clinician(s) to determine the nature and etiology of his (1) OSA and (2) neurological disability of the left lower extremity. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any of the above disabilities. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: (a) Whether the Veteran's OSA at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the lay evidence, to include from the Veteran, indicating that he experienced loud snoring and temporary cessations of breathing while in service. See Buddy/Lay Statement (November 2020). Explain. (b) Whether the Veteran's neurological disability of the left lower extremity at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease. Consider and expressly address the lay evidence suggesting that the Veteran injured himself when he stepped into a gopher hole. See Buddy/Lay Statement (February 2018). Explain. NOTE (1): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (2): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's tinnitus. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with his tinnitus. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to the following: (a) Whether the Veteran's tinnitus at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's contention that it stems from in-service noise exposure, described as aircraft engine noise. Explain. NOTE (1): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (2): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. 5. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (CONTINUED ON NEXT PAGE) 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.