Citation Nr: 22009751 Decision Date: 02/18/22 Archive Date: 02/18/22 DOCKET NO. 20-27 000 DATE: February 18, 2022 ORDER The petition to reopen the claim for service connection for mixed sleep apnea is granted. Entitlement to service connection for mixed sleep apnea is granted. Entitlement to service connection for a left ankle disorder is denied. Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a left knee disorder is denied. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) denied the Veteran's petition to reopen the claim for service connection for sleep apnea in a June 2014 rating decision. He did not file a timely notice of disagreement, and new and material evidence was not associated with the claims file within one year of the decision, and the decision became final. 2. The Veteran presented new and material evidence, in the form of testimony, that warrants reopening the claim for service connection for mixed sleep apnea. 3. The Veteran's sleep apnea began in service. 4. The Veteran's current left and right ankle pain is not related to service. 5. The Veteran's current left knee pain is not related to service. CONCLUSIONS OF LAW 1. The June 2014 rating decision denying the petition to reopen the claim for service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for sleep apnea have been met. 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for mixed sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left knee disorder 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 May 2010 to June 2011, with several years of additional service in the U.S. Army Reserve. The matter is before the Board of Veterans' Appeals (Board) on appeal from October 2013 and April 2018 rating decisions. In January 2021, he had a hearing before the undersigned Veterans Law Judge. 1. The petition to reopen the claim of service connection for mixed sleep apnea is granted. The Veteran filed his initial claim for service connection for sleep apnea in May 2012. The AOJ denied his claim in an October 2013 rating decision because the evidence did not show an in-service injury event, or disease. The Veteran did not file a timely notice of disagreement, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen and submitted evidence with his claim in November 2013, but the evidence was not new. Thus, the RO denied his petition to reopen in a June 2014 rating decision. The Veteran did not file a timely notice of disagreement, or submit new and material evidence in the one year following the decision, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Prior unappealed decisions of the Board and the RO are final. See 38 U.S.C. §§ 7104, 7105(c); 38 C.F.R. §§ 3.160 (d), 20.302(a), 20.1100, 20.1103, 20.1104. If, however, new and material evidence is presented or secured with respect to a claim which has been denied, VA shall reopen the claim and review the former disposition of the claim. See Manio v. Derwinski, 1 Vet. App. 145 (1991). Furthermore, if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and were not previously associated with the claims file, VA will reconsider the initial claim. See 38 C.F.R. § 3.156(c). "In other words, § 3.156(c) serves to place a veteran in the position he would have been had the VA considered the relevant service department record before the disposition of his earlier claim." Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). Here, service treatment records were associated with the claims file after the June 2014 rating decision. The Board finds, however, that they are not "relevant," and new and material evidence is still necessary to reopen the claim for service connection for sleep apnea. "Relevant" for purposes of reconsideration means that the additional records must speak to a matter in issue, in other words, a matter in dispute. Kisor v. McDonough, 995 F.3d 1316, 1323 (Fed. Cir. 2020). In this case, the newly obtained service treatment records do not show sleep apnea complaints or treatment, which was the basis for the October 2013 and June 2014 rating decisions. Accordingly, the newly received service records are not "relevant" such that VA was required to reconsider the original claim, and new and material evidence is necessary to reopen the claim for service connection for sleep apnea. New evidence means existing evidence not previously submitted to agency decision makers. See 38 C.F.R. § 3.156(a). 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. See id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See id. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; 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, 117-120 (2010). In January 2021, the Veteran and a fellow servicemember testified that his sleep apnea symptoms, to include snoring and apneic episodes, began in service. Unless inherently false or untrue, credibility of evidence is presumed for purposes of determining whether the evidence is new and material to reopen a claim. See Duran v. Brown, 7 Vet. App. 216, 220 (1994). Accordingly, the Board finds that new and material evidence has been received and the claim for service connection for sleep apnea is reopened. 2. Entitlement to service connection for mixed sleep apnea is granted. The Veteran seeks service connection for his current mixed sleep apnea disorder. In a January 2021 Board hearing, he testified that his sleep apnea symptoms began in service. His fellow service member also testified that he witnessed him snoring and stop breathing at night in service. The Veteran's service treatment records are associated with the claims file but do not appear to be complete. The available records do not show complaints of sleep apnea symptoms, and he denied feeling tired after sleeping and stated he was in excellent health in the May 2011 post-deployment health assessment. In a June 2020 statement, the Veteran contended he did not report any medical issues "for fear of being held over" because he wanted to return home. His post-service treatment records show that, in July 2012, he presented to VA for a sleep apnea screening. He reported snoring and that he was told he stopped breathing in his sleep. During his sleep consultation, he reported that he gained 30 pounds in the last year. After a sleep study, he was diagnosed with severe sleep apnea, mix of obstructive and central events. The Veteran underwent several VA examinations for his sleep apnea. In October 2012, he reported that his sleep issues began in Iraq and his mother noticed apneas when he slept after he returned. The examiner noted that the Veteran gained over 50lbs in the last year which may have exacerbated his sleep apnea symptoms and necessitated the use of his BiPaP machine at high pressures. In the March 2018 examination, he similarly told the examiner that his mother alerted him to his apnea episodes after he got home from service. The examiner opined that his sleep apnea was less likely than not related to service because the Veteran's service treatment records were negative for sleep apnea complaints, he denied health issues in his post-deployment health assessment, and he gained about 50lbs when he left service. After reviewing the evidence, the Board finds that service connection is warranted. The Board finds that the Veteran's and his fellow servicemember's testimony was credible and consistent with the Veteran's statements made when seeking treatment for sleep apnea and during the examination reports. While the March 2018 VA examiner issued a negative opinion, the examiner was unable to consider the hearing testimony regarding when the Veteran's symptoms began. The Board also found the Veteran's statement regarding his post-deployment health assessment to be credible. Accordingly, because his sleep apnea symptoms began in service and continued until his diagnosis in August 2012, the Board finds that service connection is warranted for mixed sleep apnea, and the claim is granted. 3. Entitlement to service connection for a left ankle disorder is denied. 4. Entitlement to service connection for a right ankle disorder is denied. The Veteran seeks service connection for left and right ankle disorders. Initially, the Board notes that the Veteran's claims for service connection for left and right ankle disorders were originally denied in October 2013 and June 2014 rating decisions that were not appealed. The Board finds that the newly received service records discussed supra are "relevant" to the Veteran's claim for service connection for left and right ankle disorders. The AOJ denied his claims for service connection for left and right ankle disorders in October 2013 and June 2014 because the evidence did not show an in-service event, injury, or disease. In December 2017, service records were received that showed the Veteran injured himself running. While he did not complain about ankle pain, the Board finds that this is sufficient to show an in-service event or injury and thus require reconsideration of the initial claim. Accordingly, new and material evidence is not required. The Veteran's service records are associated with the claims file but do not appear to be complete. The available records show treatment for left hip pain after running but no complaints of ankle pain. He reported walking with a minimal limp but was unable to continue running. The assessment was joint pain, localized in the hip. In his May 2011 post-deployment health assessment, the Veteran denied joint pain and stated he was in excellent health. In a June 2020 statement, he contended that he did not report any medical issues "for fear of being held over" because he wanted to return home. In the October 2012 VA examination, he told the VA examiner that he sprained his left ankle in Iraq. He denied residual problems following this injury and he denied an in-service right ankle injury. He reported that his ankle pain is 0/10 on any given day. Range of motion testing was also within normal limits and no movement produced objective evidence of painful motion. The examiner determined that there was no functional loss or impairment of the left or right ankle, and ankle x-rays were normal. In June 2014, the Veteran was treated for an ankle injury at Camp Bullis. He reported left leg pain that started during his PT test. He reported constant left ankle pain and occasional swelling. Left ankle x-rays were normal, a right ankle evaluation was normal, and a left ankle evaluation showed mild swelling, tenderness on palpation, and full range of motion with pain. He was assessed with left ankle joint pain most likely from increased recent activity during the running portion of APFT. It was noted that if pain is unimproved after one week, to follow up for further imaging. There are no subsequent treatment records for his left or right ankle through May 2016, when he was discharged from the Reserves. VA treatment records show the Veteran presented to VA in July 2012 to be assessed for sleep apnea. He did not complain of joint problems and reported his pain level was zero at that time. In May 2016, he complained of left ankle pain after playing basketball the week before his visit. Notably, he denied previous injury to the ankle. The assessment of his ankle was normal and there was no diagnosis. His records are negative for subsequent complaints until March 2018, when he complained of general pain in his ankles but denied injuries. His physician told him his weight was placing strain on his lower extremity joints and advised him to lose weight. Thus, the records do not show that the Veteran has a chronic condition that began in service. Instead, the records show acute injuries that resolved. For example, during his October 2012 examination, the Veteran reported a left ankle injury in service but stated he had no residuals at the time of examination. When he initiated treatment at VA for sleep apnea complaints, he did not similarly complain of ankle issues. He next complained of an ankle injury in June 2014 following an increase in activity and records do not show subsequent complaints until May 2016, when he injured his ankle playing basketball. At that time, he denied previous injuries and reported the pain began the week before his visit. There is no indication in 2016 that any ankle injury occurred during a Reserves duty period. His records are negative for further ankle treatment until March 2018. Although multiple x-rays were taken during this period, they showed no evidence of an ankle disorder. Thus, it is clear from his medical records and statements made seeking treatment that his left ankle sprain in active service was an acute injury that resolved, as were all subsequent injuries until March 2018. Notably, the record does not demonstrate a right ankle issue until March 2018. The Board also considered the March 2018 VA medical opinion but did not rely on it as the Veteran's treatment records do not appear to be complete and the Board finds the Veteran's statement regarding his post-deployment health assessment to be credible. The Board finds that there is sufficient medical and lay evidence to decide the claim, however, and remand is unnecessary to obtain an additional medical opinion. This is particularly true as the Veteran denied residuals from his in-service left ankle injury and denied an in-service right ankle injury in the October 2012 VA examination, and the evaluations and diagnostic tests were normal. The Board notes that the Veteran's representative testified his records documented ankle arthritis. The Veteran's records do not show such a diagnosis or x-ray confirmation of arthritis, however. The Board considered the Veteran's testimony and the lay statements submitted in support of his ankle claims. Specifically, the lay statements alleged both ankles have been sprained, he limps when running, and he moves slower than before. In the Board hearing, the Veteran testified that he twisted his ankle running in service and he has experienced trouble with them since then. The Board finds, however, that his medical records and statements made seeking treatment contradict and outweigh his testimony and supporting lay statements. The Veteran specifically denied left ankle residuals from his in-service ankle sprain and denied an in-service right ankle injury in the VA examination. Later records show that each complaint was acute, unrelated to a previous injury, and resolved until March 2018. The Board finds that the medical records and his statements made seeking treatment contradict his testimony and the supporting lay statements, and therefore such testimony and statements are not credible. Finally, the Board considered the combat presumption. In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b), and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, like the Veteran in this appeal, satisfactory lay or other evidence that an injury was incurred will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence. See 38 C.F.R. § 3.304 (d). Section 1154(b) does not mean, however, that a grant of service connection is presumed for veterans who were injured in combat. Instead, "the veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury...incurred during active duty." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the Board finds that the combat presumption does not justify a grant of service connection because evidence does not support a causal relationship between any left ankle injuries experienced by the Veteran in combat and his current ankle pain. As discussed above, the Veteran denied a right ankle injury in service and denied residuals from his in-service left ankle injury in October 2012. Subsequent records show only acute injuries unrelated to service that resolved. Thus, to the extent the Veteran incurred a left ankle injury in service, the evidence shows that his condition resolved by separation. As a causal relationship has not been established, the Board finds that service connection is not warranted, and the claims are denied. 5. Entitlement to service connection for a left knee disorder is denied. The Veteran seeks service connection for a left knee disorder. Initially, the Board notes that the Veteran's claim for service connection for a left knee disorder was originally denied in October 2013 and June 2014 rating decisions that were not appealed. The Board finds that the newly received service records discussed supra are "relevant" to the Veteran's claim. The AOJ denied his claim in October 2013 and June 2014 because the evidence did not show an in-service event, injury, or disease. In December 2017, service records were received that showed the Veteran injured himself running. While he did not complain about knee pain, the Board finds that this is sufficient to show an in-service event or injury and thus require reconsideration of the initial claim. Accordingly, new and material evidence is not required. The Veteran's service records are associated with the claims file but do not appear to be complete. The available records show treatment for left hip pain after running but no complaints of knee pain. He reported walking with a minimal limp but was unable to continue running. The assessment was joint pain, localized in the hip. In his May 2011 post-deployment health assessment, the Veteran denied joint pain and stated he was in excellent health. In a June 2020 statement, he contended that he did not report any medical issues "for fear of being held over" because he wanted to return home. In the October 2012 VA examination, he told the VA examiner that he twisted his left knee running in Iraq. He denied residual problems following this injury but stated he had 3/10 knee pain on any given day. Range of motion for his left knee was similar to his right and no movement produced objective evidence of painful motion. The examiner determined that there was no functional loss or impairment of the left knee. Knees x-rays did not show arthritis but did show bilateral patella alta and slight joint space narrowing in the medial compartments bilaterally. In June 2014, the Veteran sought treatment for left leg pain that began in his left hip and spread to his ankle following his PT test. He also reported pain in his left knee for the past five days. While the examiner evaluated his hips and ankles, his knee was not evaluated, and he was only diagnosed with a left hip sprain and left ankle joint pain. There are no subsequent treatment records for his knees through May 2016, when he was discharged from the Reserves. VA treatment records show the Veteran presented to VA in July 2012 to be assessed for sleep apnea. He did not complain of joint problems and reported his pain level was zero at that time. Notably, his VA treatment records from July 2012 through March 2018 are negative for knee complaints. In March 2018, he complained of general pain in his knees and ankles but denied injuries and trauma. Knee range of motion testing was within normal limits and there was no evidence of effusion or crepitation. X-rays were taken and showed normal joint spaces with no narrowing suggestive of degenerative change, and the impression was a normal left knee. His physician told him his weight was placing strain on his lower extremity joints and advised him to lose weight. Thus, the records do not show that the Veteran has a chronic condition that began in service. Instead, the records show acute injuries that resolved. For example, during his October 2012 examination, the Veteran reported a left knee injury in service but stated he had no residuals at the time of examination. When he initiated treatment at VA for sleep apnea complaints, he did not similarly complain of knee issues. He next complained of knee pain in June 2014 following an increase in activity, but no diagnosis was rendered for his knee. At that time, he denied previous injuries and reported the pain began the week before his visit. His records are negative for further knee complaints until March 2018, at which time he again denied injuries and trauma to the knee. Importantly, his left knee x-ray was normal and did not show degenerative changes. Thus, it is clear from his medical records and statements made seeking treatment that his left knee condition in active service was an acute injury that resolved, as were all subsequent injuries until March 2018. The Board considered the Veteran's testimony and the lay statements submitted in support of his knee claim. Specifically, the lay statements alleged he favors his left knee, he limps when running, and he moves slower than before. In the Board hearing, the Veteran testified that he injured his knee running in service and has experienced trouble with it since then. The Board finds, however, that his medical records and statements made seeking treatment contradict and outweigh his testimony and supporting lay statements. The Veteran specifically denied residuals from his in-service knee injury at the October 2012 VA examination. Later records show that each subsequent complaint was acute, unrelated to a previous injury, and resolved until March 2018. The Board finds that the medical records and his statements made seeking treatment contradict his testimony and the supporting lay statements, and therefore such testimony and statements are not credible. Finally, the Board considered the combat presumption. However, the Board finds that the combat presumption does not justify a grant of service connection because evidence does not support a causal relationship between any left knee injuries experienced by the Veteran in combat and his current knee pain. As discussed above, the Veteran denied residuals from his in-service left knee injury in October 2012. Subsequent records show only an acute injury unrelated to service that resolved. Thus, to the extent the Veteran incurred a left knee injury in service, the evidence shows that his condition resolved by separation. As a causal relationship has not been established, the Board finds that service connection is not warranted, and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.