Citation Nr: 21042550 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-47 200 DATE: July 13, 2021 ORDER The previously denied claim of entitlement to service connection for carpal tunnel syndrome of the right hand is reopened. Service connection for carpal tunnel syndrome of the right hand is granted. Service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for asthma, to include as secondary to service-connected sinusitis and/or allergic rhinitis, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected degenerative arthritis of the lumbar spine with strain of the thoracic spine, to include spondylosis (back disability), is remanded. Entitlement to service connection for a gastrointestinal disability (claimed as irritable bowel syndrome (IBS)), to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. In an April 2003 rating decision, a Department of Veterans' Affairs (VA) Regional Office (RO) denied the Veteran's claim of entitlement to service connection for carpal tunnel syndrome of the right hand; he was advised of the RO's decision and of his appellate rights. 2. The Veteran appealed the April 2003 rating decision by submitting a timely notice of disagreement (NOD) in January 2004; the RO issued a statement of case (SOC) in October 2004, advising the Veteran of the time within which he needed to file a substantive appeal in order to perfect his appeal. 3. The Veteran did not perfect his appeal of the April 2003 rating decision by filing a timely substantive appeal after issuance of the October 2004 SOC; as such, the RO closed the appeal. 4. New evidence received since the time of the RO's April 2003 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for carpal tunnel syndrome of the right hand and raises a reasonable possibility of substantiating the claim. 5. It is at least as likely as not that the Veteran has carpal tunnel syndrome of the right hand that is attributable to active service. 6. It is at least as likely as not that the Veteran has sleep apnea that began during active service. CONCLUSIONS OF LAW 1. The RO's April 2003 rating decision denying service connection for carpal tunnel syndrome of the right hand is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2002). 2. New and material evidence has been received to reopen the claim for service connection for carpal tunnel syndrome of the right hand. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for carpal tunnel syndrome of the right hand have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for obstructive sleep apnea have 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 in the United States Navy from August 1981 to August 2001. His decorations include the Armed Forces Expeditionary Medal, the Good Conduct Medal, and the Navy/Marine Corps Achievement Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the VARO in St. Paul, Minnesota. In March 2021, the Veteran and his spouse testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. The previously denied claim of entitlement to service connection for carpal tunnel syndrome of the right hand is reopened. The Veteran seeks to reopen his previously denied claim for service connection for carpal tunnel syndrome. Generally, a claim that has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (2012). 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 and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 11 (2010). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, in February 2003, the Veteran filed a claim for service connection for carpal tunnel syndrome of the right hand. An April 2003 rating decision denied the claim. The Veteran initiated an appeal of the April 2003 rating decision by filing a NOD in January 2004. In October 2004, the RO issued a SOC, advising the Veteran of the time within which he needed to file a substantive appeal in order to perfect his appeal. Thereafter, he did not perfect his appeal by filing a timely substantive appeal. As a result, the RO's April 2003 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. The February 2003 rating decision denied the Veteran's claim on the basis that there was no record of him being treated or diagnosed with the claimed condition while in service. The Board finds that new and material evidence has been received. The Veteran submitted a February 2020 medical statement from his primary care physician, who opined that it was more likely than not that the Veteran's carpal tunnel syndrome was related to his active duty service. This evidence tends to establish a nexus between the current disability and active service and raises a reasonable possibility of substantiating the claim. It is therefore new and material. The claim for service connection for carpal tunnel syndrome of the right hand is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding organic diseases of the nervous systemto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for carpal tunnel syndrome of the right hand is granted. The Veteran contends that his carpal tunnel syndrome is related to an in-service injury to the right hand when he sustained an electric shock. Following review of the record, the Board concludes that he has a current disability that is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A February 2020 private treatment record shows the Veteran has a current diagnosis of carpal tunnel syndrome of the right hand. During service, he was seen in July 1982 after sustaining an electric shock to the hands. In March 1989, he was also seen for a puncture wound to the right hand. The evidence in favor of the claim includes a February 2020 private treatment record from the Veteran's primary care physician, who opined that it was more likely than not that the Veteran's carpal tunnel syndrome was related to his active duty service. The private physician reasoned that the Veteran had a positive electromyography test for carpal tunnel of the right wrist within one year of his retirement from the Navy. The examiner also noted that the Veteran sustained an electric shock to the right hand in 1982. There are no contrary medical opinions of record. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current carpal tunnel syndrome is related to service. Accordingly, and after resolving doubt in favor of the Veteran, the Board finds that service connection for carpal tunnel syndrome of the right hand is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal of this issue is granted. 3. Service connection for obstructive sleep apnea is granted. The Veteran contends that his sleep apnea started in service. He asserts that he began experiencing sleep problems during service. Alternatively, he contends that his sleep apnea is secondary to his service-connected sinusitis, cervical spine disability, and/or posttraumatic stress disorder (PTSD). The Board concludes that he has a current disability that began in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). An August 2016 VA examination report shows a diagnosis of obstructive sleep apnea. The evidence weighing in favor of the claim includes a March 2001 report of medical history at service separation, which shows that the Veteran reported frequent trouble sleeping. In a July 2017 statement, his daughter reported that her family observed the Veteran stop breathing and snore during service. See also July 2017 statement from the Veteran's spouse. The Veteran also submitted an April 2011 treatment report from his primary care physician who opined that the Veteran's sleep apnea more likely occurred while he was in service. The private physician related the Veteran's sleep apnea to his complaints of trouble sleeping during service. The evidence weighing against the claim includes an August 2016 VA examiner's opinion that the Veteran's sleep apnea was less likely than not incurred in or caused by service. The examiner reasoned that the Veteran was diagnosed with sleep apnea nine years after service separation, after gaining significant weight. On review of the record, the Board finds the evidence to be at least in equipoise as to whether the Veteran's current obstructive sleep apnea began in service. In this regard, the Board finds the above-referenced positive opinion, especially when considered with the lay statements from the Veteran's spouse and daughter, no less probative than the negative opinion. Accordingly, and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal of this issue is granted. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims and to afford him every possible consideration. 1. Entitlement to service connection for asthma is remanded. The Veteran contends that his asthma began in service due to environmental exposures during service. Alternatively, he asserts that his asthma is secondary to his service-connected allergic rhinitis and/or sinusitis. Service treatment records show that the Veteran was treated for bronchitis, wheezing, and upper respiratory infections on multiple occasions during service. An August 2016 VA examiner opined that the Veteran's asthma was less likely than not incurred in or caused by in-service wheezing and bronchitis. However, the examiner did not address whether the asthma was related to environmental exposures during service, or whether the Veteran's asthma was secondary to his service-connected allergic rhinitis and/or sinusitis. A remand is required in order to obtain an addendum opinion. 2. Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension began in service. Specifically, he asserts that he had elevated blood pressure readings during service. Alternatively, he contends that his hypertension is related to pain resulting from his service-connected back disability. An August 2016 VA examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by service. The examiner reasoned that while the Veteran had several one-time elevated blood pressure readings during service, such measurements were followed by subsequent normal blood pressure readings. However, the examiner did not address whether the Veteran's hypertension was secondary to his service-connected back disability. A remand is required in order to obtain an addendum opinion. 3. Service connection for a gastrointestinal disability is remanded. The Veteran contends that he has IBS that started in service after suffering from giardiasis during service. Alternatively, he asserts that he has IBS as secondary to non-steroidal anti-inflammatory drugs (NSAIDs) he takes for his service-connected disabilities. A May 2013 VA examiner opined that the Veteran's IBS was less likely than not incurred in or caused by service. The examiner reasoned that there is no indication that there were continuing ongoing symptoms of diarrhea during military service after his giardiasis infection. The examiner noted that the Veteran was on Metformin which could cause diarrhea as a side effect. The examiner explained that the Veteran's current report of diarrhea was less likely as not a continuation or related to care for diarrhea during service, which was related to an infection with giardiasis. The examiner noted that there was no current diagnosis of IBS, that the Veteran's current diarrhea symptoms were not the result of exposure during the Gulf War as such symptoms should have been concurrent with exposure. The examiner also noted that the Veteran's symptoms had not been evaluated; therefore, they constituted a "not yet diagnosed condition" rather than an undiagnosed condition. The Board finds that the May 2013 VA opinion inadequate. Specifically, VA treatment records during the appeal period show that the Veteran was treated for IBS. See, e.g., January 2013 VA treatment record. Moreover, the Veteran's service treatment records reflect treatment for diarrhea and gastrointestinal symptoms on multiple occasions before his February 1986 and August 1987 giardiasis infections. See, e.g., September 1981 and November 1986 service treatment records (showing treatment for diarrhea); December 1986 service treatment record (showing a notation of chronic running stool); September 1987 service treatment record (noting recurrent gastrointestinal symptoms, ruled out giardiasis); October 1990 service treatment record (noting treatment for diarrhea and stomach problems due to a viral syndrome); and November 1994 service treatment record (noting treatment for nausea and diarrhea due to gastroenteritis). Based on the foregoing, and given the May 2013 VA examiner's notation that the Veteran's diarrhea symptoms had not been evaluated, the Board finds that a remand is required in order to obtain a VA examination with opinion as to the etiology of the Veteran's gastrointestinal problems. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange for the claims file to be reviewed by the VA examiner who prepared the August 2016 VA asthma opinion (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's asthma had its onset in, or is otherwise attributable to, service, to include environmental exposures during service. If it is the examiner's opinion that it is unlikely that the Veteran's asthma was incurred in service or is otherwise related to service, the examiner should render a further opinion with respect to whether the disability has been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by his service-connected allergic rhinitis and/or his service-connected sinusitis. A complete medical rationale for all opinions expressed must be provided. 4. Also arrange for the claims file to be reviewed by the VA examiner who prepared the August 2016 VA hypertension opinion (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hypertension has been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by his service-connected back disability. A complete medical rationale for all opinions expressed must be provided. 5. Arrange, further, to have the Veteran scheduled for a VA gastrointestinal examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether the Veteran's disability pattern with respect to gastrointestinal problems is most consistent with (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology; (iii) a diagnosable chronic multi-symptom illness with partially explained etiology/pathophysiology; or (iv) a disease with a clear and specific etiology The examiner is also requested to offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a gastrointestinal disability that began in service, or is otherwise related to service, to include treatment for gastrointestinal problems during service. If it is the examiner's opinion that it is unlikely that a gastrointestinal disability was incurred in service or is otherwise related to service, the examiner should render a further opinion with respect to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability has been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by NSAIDs he takes for his service-connected disabilities. A complete medical rationale for all opinions expressed must be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.