Citation Nr: 21042385 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-08 448 DATE: July 12, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for sleep apnea is reopened. To this extent only, the claim is granted. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. In a May 2011 rating decision, the RO denied service connection for a sleep apnea disorder. The Veteran submitted new and relevant service department records within a year of the May 2011 decision that were considered in an April 2013 statement of the case (SOC). The Veteran did not perfect an appeal or submit new or material evidence within 60 days of the SOC. 2. Evidence received since the May 2011 rating decision, by itself, or in conjunction with previously considered evidence, does relate to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for a sleep apnea disability. 3. The preponderance of the evidence is against finding that sleep apnea had an onset in service or is otherwise related to an in-service, injury, event, or disease. CONCLUSIONS OF LAW 1. The May 2011 rating decision that denied the claim of entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. 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; 38 C.F.R. § 3.156. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to June 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Veteran testified at a Board videoconference hearing before the undersigned in March 2021. A transcript of that hearing is associated with the claims file. The Board initially notes that the Veteran's claim of entitlement to service connection for bilateral pes planus has previously been characterized and developed as a claim to reopen a prior denial; the RO declined to reopen the claim in the December 2015 rating decision and in the January 2018 Statement of the Case (SOC). However, under 38 C.F.R. § 3.156(c)(1), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include, but are not limited to, additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records. An award based in whole or in part on these additional service department records is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later. 38 C.F.R. § 3.156(c)(3). The claim will not be reconsidered under 3.156(c) if the service records associated with the file subsequent to the initial rating decision could not have been obtained when VA first decided the claim, either because they did not exist at the time or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). In a May 2011 rating decision, the RO denied service connection for pes planus because the records do not provide a link between the claimed disability and active duty military service. The RO noted that the Veteran's Entrance Medical Examination stated that the claimed foot disability existed at enlistment. It was further noted that there was no evidence showing that the Veteran's foot condition permanently worsened beyond normal progression as a result of active duty military service. In the May 2011 rating decision, the RO indicated that the Veteran's STRs from June 15, 1974 to June 14, 1979 were considered. However, the record reflects that the Veteran's complete set of STRs was added to the claims file in October 2015. The Board finds that review of the claims-file reasonably indicates that these particular service treatment records were not in the claims-file at the time of the May 2011 RO rating decision. The Board finds that the service treatment records received in October 2015 are relevant to the bilateral pes planus issue on appeal. The Veteran's complete in-service treatment records show that the Veteran had a pes planus foot disability that was noted upon entry and his in-service treatment records further show that the Veteran had ongoing foot issues including foot pain in both feet while in service, which was noted to have not decreased. The Board finds no reason that these records should not trigger reconsideration of the claim under 38 C.F.R. § 3.156(c). There is no indication that the Veteran did not provide sufficient information to search for or secure these records at the time of the May 2011 decision; the record appears to properly belong with the set of the Veteran's service treatment records from the pertinent period, but for unclear reasons was absent from the set obtained by the RO. Given the submission of this new service department record, the Veteran's service connection claim for bilateral pes planus claim must be reconsidered without regard to the previous denial. 38 C.F.R. § 3.156(c). NEW AND MATERIAL EVIDENCE In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2018). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. 1. New and material evidence having been submitted, the claim of service connection for sleep apnea is reopened. In a May 2011 rating decision, the RO denied service connection for a chronic sleep disorder (claims as sleep apnea) because the treatment records were silent for complaints, treatment, or a diagnosis of sleep apnea. Moreover, the RO denied the claim because there was no evidence showing that the sleep apnea disability occurred in or was caused as a result of active duty military service. The Veteran submitted a timely notice of disagreement. An April 2013 Statement of the Case (SOC) found that the Veteran's treatment records note routine treatment for sleep apnea; however, the denial was continued, as there was no evidence that the Veteran had a sleep disorder that either occurred in or was caused by military service. The Veteran did not perfect an appeal or submit new and material evidence within 60 days of the SOC. The May 2011 rating decision with April 2013 SOC is thus final based on the evidence then of record. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Evidence of record at the time of the May 2011 decision included an incomplete in-service treatment records. At that time there were no treatment records or examinations related to a sleep apnea disability. Evidence submitted since the May 2011 rating decision includes treatment records which reveal that the Veteran has a diagnosis and history of sleep related issues to include an assessment of sleep apnea, service treatment records, and lay statements made by the Veteran during the Board hearing. The VA post service medical treatment records which were submitted subsequent to the May 2011 rating decision show that the Veteran does have a current disability of sleep apnea. The Board finds that new and material evidence has been presented. The evidence, including treatment records which reveal that the Veteran has a diagnosis and history of sleep related issues to include an assessment of sleep apnea, service treatment records, and lay statements made by the Veteran during the Board hearing are new because they were not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim- that the Veteran's current sleep apnea disability may be related to issues of difficulty sleeping while in service. See 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d at 1167. Specifically, the Board notes that the Veteran's post service treatment records include a sleep study that establishes that he has sleep apnea and during the Board hearing the Veteran testified that it is possible that his sleep apnea is connected to some issues that he had with falling asleep in service. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156 (a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim for entitlement to service connection for sleep apnea is reopened. SERVICE CONNECTION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for sleep apnea is denied. The Veteran asserts that his sleep apnea disorder may be related to service. During the March 2021 Board hearing, the Veteran testified that his sleep apnea symptoms were probably present while in service. The Veteran testified that after his time in service, his fiancée told him that she used to wake him up because he snored loudly. The Veteran also testified that he had issues falling asleep while in service, but he also testified that he was working the night shift and going to school in the daytime. The Veteran testified that there was no indication that he had sleep issues in service. Moreover, the Veteran testified that his issues with falling asleep in class was probably because he was tired, not specifically because of a condition like sleep apnea. The Veteran clarified that he has gut feeling that his sleep apnea was present in service. See Hearing Transcript Received March 2021. The Veteran's service treatment records are silent for any reports, complaints, or symptoms of sleep apnea. The Veteran's post-service treatment records include several notations related to sleep issues many years after service. A January 2012 treatment record includes a note that indicates that an assessment of sleep apnea was observed. An April 2012 treatment record states that the Veteran reports loud snoring and periods of sleep apnea for the past one to two years. Another June 2012 treatment record states that the Veteran has a history of loud snoring and daytime sleepiness. See CAPRI records Received April 2013. A February 2018 treatment note reveals that a sleep study was conducted and the Veteran was diagnosed with sleep apnea. See Medical Treatment Record Received February 2021. While the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence weighs against finding that the Veteran's sleep disability began during service or is otherwise related to an in-service injury, event, or disease. The Board notes that there is no etiological opinion of record regarding the Veteran's sleep apnea disability, nor does the record contain any treatment records that suggest that the Veteran's sleep apnea disability is related to an injury, event, or disease that occurred in service. The Board also notes that during the Board hearing the Veteran testified that he was told by his fiancé years after service that he snored in his sleep. Moreover, the Veteran also testified that there was no indication that he had sleep issues in service. Further, the Veteran testified that his issues with falling asleep in class was probably because he was tired, not specifically because of a condition like sleep apnea. The Board finds that these statements made directly by the Veteran himself are particularly probative and weigh against the Veteran's claim. Additionally, the Board has considered the fact that in an April 2012 treatment record, the Veteran reported loud snoring and periods of sleep apnea for the past one to two years and finds this information to be persuasive. The earliest medical evidence of record indicating the presence of sleep apnea was a general note of an assessment of sleep apnea dated January 2012; however, a full sleep study establishing sleep apnea was dated February 2018. Even assuming the Veteran was diagnosed with sleep apnea in January 2012, that diagnosis is more than three decades after his separation from active service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is yet another factor that weighs against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Veteran during the latter part of the Board hearing stated that his sleep apnea disability may be related to issues he had falling asleep in service, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). There is no objective medical evidence establishing a nexus between the Veteran's sleep apnea disability and service. The Board notes the Veteran has not been afforded a VA examination to determine the etiology of his sleep apnea. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be competent evidence of a current disability, competent evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. Here, the Board finds that an examination in this instance is not warranted as it relates to the Veteran's claim of service connection for sleep apnea. Specifically, there is no evidence establishing an "in-service event, injury or disease," or that a disease, manifested in accordance with service connection regulations, which would support incurrence or aggravation, or an indication that the Veteran's current sleep apnea disability may be related to an in-service event. Instead, the Veteran's "gut feeling" is a conclusory generalized lay statement alleging nexus between his current sleep apnea and service which does not meet the standard to warrant an examination. Thus, there are no duty to assist errors that would necessitate affording the Veteran an examination or opinion for his sleep apnea disability. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that his sleep apnea disorder is causally related to an in-service event, injury, or disease. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. REASONS FOR REMAND 3. Entitlement to service connection for bilateral pes planus is remanded. The Veteran asserts that his bilateral pes planus disability is related to service. During the Board's March 2021 hearing the Veteran's representative took issue with the rating decision that relied on a March 2011 VA examination when determining that the Veteran's pes planus disability was not aggravated by service. The representative highlighted the fact that a service treatment record from December 9, 1976 which was about 6 months after the Veteran joined the Army, stated that the Veteran had low arches bilaterally and experienced pain in the feet and ankle swelling. Additionally, the representative noted that the podiatry consultation conducted in service on December 9, 1976 states that the Veteran had low foot arches and had three weeks of pain in his toes and heels from wearing regulation shoes. Furthermore, the representative stated that in 1978, there was another podiatry consultation where the Veteran reported complaints of foot pain that had been ongoing for two years. Moreover, the representative highlighted the fact that the August 18, 1978, podiatry consultation noted that the Veteran was wearing size 10 in military shoes, but he measured at that consultation as wearing a size 11 and a half. The Veteran's representative has set forth the argument that these specific facts in the Veteran's STRs which do not appear to have been acknowledged or considered by the prior March 2011 VA examiner appear to show that the Veteran's pes planus foot disability was aggravated by service. During the Board hearing the Veteran testified that he did not have issues related to his feet prior to service. The Veteran also testified that when he entered the Army he began having aches and pains in his feet in his toes and in the back of his heels. The Veteran testified that the pain in his feet was perpetual when he was in service and he believes that it was due to the extensive walking and work related to being on his feet as a Nursing Assistant while in service. The Veteran stated that he was eventually prescribed different shoes to ease the pain in his feet. The Veteran testified that he continues to have pain in his feet now and has ongoing pain in the back of his heels and on the ball of his feet. The Veteran also testified that although his separation examination did not indicate foot pain he was still experiencing foot pain at that time he separated from service. See Hearing Transcript Received March 2021. The Veteran's service treatment records include several notations related to foot issues that the Veteran experienced while in service. The June 1976 entrance examination notes that the Veteran had pes planus. A December 9, 1976 treatment record states that the Veteran complained of pain in his feet and ankle swelling. The doctor's notes in the same record state that the Veteran had low foot arches and specifically complained of pain in the toes and heels when wearing any regulation shoes. Additionally, it was noted that the Veteran required a profile for a soft shoe. An August 1978 treatment note states that the Veteran has pain on both feet that has not decreased. The treatment note also indicates that the Veteran has experienced feet issues for the past 2 years. A treatment note dated May 3, 1978 states that the Veteran complained of blisters on his foot with prolonged walking. It is further stated that the Veteran's shoes do not fit properly. The Veteran's March 1979 separation examination notes that the Veteran did not have foot trouble upon separation. The March 2011 examiner opined that based on the above information, the Veteran's current moderate bilateral pes planus is likely to be the same as the bilateral pes planus he had in the service. The Board parenthetically notes that the May 2011 examiner did not provide a medical opinion with respect to aggravation. In the March 2013 addendum opinion, the examiner stated that the Veteran's pes planus disability was not permanently aggravated beyond natural progression by military service because there was no evidence of such aggravation available. The Board finds that an addendum opinion is warranted in this case as it does not appear that the prior March 2011 VA examiner or the March 2013 addendum examination fully considered the factual evidence of record in the Veteran's service treatment records. For an opinion to be adequate, it must include consideration of the Veteran's statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. The Board thus concludes that neither the March 2011 VA examination nor the March 2013 addendum opinion is adequate for adjudicative purposes, and were not adequate for adjudicative purposes at the time of the AOJ decision on appeal. The March 2011 opinion is inadequate as there was no medical opinion on aggravation offered. The Board notes that although a subsequent addendum opinion was provided in March 2013, this opinion was also inadequate as it was vague, failed to mention relevant facts in the record, and offered no supporting rationale for the opinion provided. Moreover, it did not state the legal standard the examiner applied in reaching his conclusion. A medical opinion based on an inaccurate factual premise must be dismissed as non-probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). Moreover, the Board notes that the Veteran's complete service treatment records were not part of the file at the time of the March 2011 and March 2013 opinions, as those records were not added to the file until October 2015. Therefore, remand is required to obtain an adequate examination and addendum opinion based upon a complete review of the evidence. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's pes planus. The electronic claims file must be made accessible to the examiner for review in connection with the examination. The examiner should provide an opinion as to whether it is: a. Identify the Veteran's foot conditions by (1) diagnosis or (2) functional impairment. b. Was the Veteran's pes planus permanently aggravated during active service? In doing so, the examiner must specifically address whether the worsening symptoms (including pain and swelling) that the Veteran experienced during service represents an increase in severity of his condition or were a transient increase in symptomatology or a temporary flare-up. c. If the examiner finds that the Veteran's preexisting pes planus increased in severity during active service, is the worsening clearly and unmistakably (undebatable) due to the natural progress of the condition? In providing these opinions, the examiner must provide an adequate rationale and discuss the normal progression of the pes planus condition. d. As for any foot disorder other than pes planus, is it at least as likely as not that the disorder had its onset in service or within a year of service discharge or is otherwise etiologically related to active service? The examiner must consider and address the following notations in the Veteran's service treatment records when formulating the medical opinions: (1) A December 9, 1976 treatment record states that the Veteran complained of pain in his feet and ankle swelling, as well as doctor's notes that the Veteran had low foot arches and specifically complained of pain in the toes and heels with any regulation shoes and that the Veteran required a profile for a soft shoe. (2) An August 1978 treatment note states that the Veteran has pain on both feet that has not decreased. The treatment note also indicates that the Veteran has experienced feet issues for the past 2 years. (3) A treatment note dated May 3, 1978 states that the Veteran complained of blisters on his foot with prolonged walking and noting shoes that do not fit properly. Additionally, the examiner is asked to consider that although the Veteran's March 1979 separation examination states that he did not have foot issues upon separation, during the March 2021 Board hearing the Veteran testified that he did actually have foot issues at the time of separation which have been ongoing and continue to persist to date. The Board has assessed the Veteran's credibility during the hearing and accepts as fact that the Veteran did have foot issues upon separation and or shortly thereafter. In providing the above opinions, the examiner is reminded that the Veteran is competent to report continuous symptoms since service, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports regarding current or past symptoms, the examiner must provide a reason for doing so. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.