Citation Nr: 22014162 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 20-08 369A DATE: March 11, 2022 ORDER New and material evidence has been received, and the application to reopen the claim of entitlement to service connection for a low back disability is granted. New and material has been received, and the application to reopen the claim of entitlement to service connection for right upper extremity peripheral neuropathy is granted. New and material has been received, and the application to reopen the claim of entitlement to service connection for left upper extremity peripheral neuropathy is granted. Service connection for a low back disability is granted. REMANDED Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an October 2015 rating decision, the regional office (RO) denied the Veteran's claims of service connection for a back condition, right upper extremity peripheral neuropathy, and left upper extremity peripheral neuropathy. The Veteran did not file a Notice of Disagreement, nor was new and material evidence received within a year. 2. Since the October 2015 decision, new evidence has been received that relates to an unestablished fact necessary to substantiate the Veteran's low back claim. 3. Since the October 2015 decision, new evidence has been received that relates to an unestablished fact necessary to substantiate the Veteran's claim for right upper extremity peripheral neuropathy. 4. Since the October 2015 decision, new evidence has been received that relates to an unestablished fact necessary to substantiate the Veteran's claim for left upper extremity peripheral neuropathy. 5. The Veteran's low back disability had onset during active service. CONCLUSIONS OF LAW 1. The October 2015 rating decision that denied the Veteran's claims of service connection for a back disability and right and left upper extremity peripheral neuropathy is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As evidence received since the October 2015 rating decision is new and material, the criteria for reopening the claim for service connection for a low back disability are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. As evidence received since the October 2015 rating decision is new and material, the criteria for reopening the claim for service connection for right upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. As evidence received since the October 2015 rating decision is new and material, the criteria for reopening the claim for service connection for left upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. The criteria for service connection for a low back disability, to include chronic low back pain and degenerative disc disease, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1968 to February 1971. He testified before the undersigned at a videoconference in February 2022. A transcript of the hearing is associated with the claims file. The Board notes that at the February 2022 Hearing, the Veteran's attorney requested an additional 60 days within which to submit additional evidence. Evidence was submitted prior to the expiration of the 60-day period, and correspondence received with the evidence requested that the Board advance the case on the docket due to a serious illness. The Board has granted this request, and interprets the submission of evidence with the request for advancement as a waiver of the remainder of the 60-day continuance. Finally, the Board notes that the Veteran has other appeals pending in the Appeals Modernization Act (AMA) framework. Those appeals will be addressed in separate decision. New and Material Evidence The Veteran's claim of entitlement to service connection for a low back disability was most recently denied by the RO in an October 2015 rating decision, in pertinent part based on findings that there was no link between the Veteran's condition and service. That rating decision also denied entitlement to service connection for right and left upper extremity peripheral neuropathy, on the basis that there was no diagnosis of either condition. The Veteran did not file a timely Notice of Disagreement, nor was new and material evidence received within one year. Accordingly, the October 2015 rating decision became final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. In connection with the Veteran's October 2016 claim to reopen, the Veteran testified at a February 2022 Board Hearing as to the onset and progression of his back disability. The Board finds such evidence to be new and material under the provisions of 38 C.F.R. § 3.156, insofar as it relates to a nexus, or link, between the current disability and in-service injury. The claim of service connection for a low back disability is accordingly reopened. Evidence received since the October 2015 rating decision pertaining to the Veteran's claims of service connection for upper extremity peripheral neuropathy include the report of a February 2017 VA examination report, in which a VA examiner indicated that the Veteran had bilateral ulnar neuropathy and carpal tunnel syndrome. The Board finds such evidence to be new and material under the provisions of 38 C.F.R. § 3.156, insofar as it relates to the presence of a current upper extremity neuropathy disability. The claims of service connection for upper extremity peripheral neuropathy are accordingly reopened. Service Connection For nearly forty years, the Veteran has told medical providers that he hurt his back in service when he was loading supplies on a train and fell across the tracks, injuring his back. See September 1984 private treatment record; February 2022 Hearing Transcript. VA treatment records show the Veteran has current diagnoses of chronic low back pain and degenerative disc disease. Service treatment records show that in June 1969, the Veteran presented with complaints of low back pain. In October 1969, he reported being pressed between a ramp and a boxcar which resulted in a left buttock injury. On the report of medical history completed at the time of separation, the Veteran answered in the affirmative the question of whether he had back trouble of any kind. Thus, the question becomes whether the current disability is related to service. While there is no medical nexus opinion evidence of record, the Board finds that the evidence as it stands, to include private medical evidence and the Veteran's credible lay statements as to the onset and progression of his back pain, is sufficient to support an award of service connection based on in-service incurrence. The evidence shows that after separating from service with complaints of back pain noted on his November 1970 separation report of medical history, the Veteran apparently attempted to receive VA care for his painful back. See October 1985 Congressional Correspondence. According to the Veteran, VA providers attributed his back pain to his anxiety. In late 1984, it appears that the Veteran's back pain was so severe that he ultimately sought private medical treatment. In September 1984, he told a private provider that his back pain began approximately 15 years prior during service when he fell from a boxcar and struck his back against the rails. He said he had experienced intermittent difficulty since that time. In October 1984, he was assessed with lumbar disc syndrome and anterior disc disruption syndrome and underwent a spinal fusion. See October 1984 surgery notes. While the record is then silent for a time for back issues, the evidence shows that in 1998, the Veteran sought private treatment for back pain and Dr. R.C. concluded that the Veteran had "noted degenerative disc disease of his lumbar spine." In July 2003, the Veteran sought VA treatment for back pain and told his VA provider that he injured his back in the military while loading a train car. VA treatment records through the present show continued complaints of and treatment for low back pain. At his February 2022 Board Hearing, he again explained that he injured his back when he was loading a boxcar and fell on the tracks, injuring his back. He said that he had not experienced any other injuries to his back, and that he had experienced back pain ever since his separation from service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current low back disability had onset in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 4. Entitlement to service connection for peripheral neuropathy of the left upper extremity. Initially, the Board notes that the Veteran most recently underwent a VA examination to assess the severity of his lower extremity peripheral neuropathy in February 2020. At that time, he was assessed with moderate incomplete paralysis of the sciatic nerve. It was noted that he did not require the use of an assistive device. Subsequently, at his February 2022 Hearing, the Veteran testified that because of his lower extremity neuropathy, he was unsteady on his feet and used a cane. He specifically indicated that he had only started using a cane after his last evaluation by VA. In light of the allegations of worsening at his February 2022 Hearing, the Board finds that the Veteran should undergo an updated examination to assess the severity of his lower extremity peripheral neuropathy. Regarding his upper extremity peripheral neuropathy, the February 2020 VA examiner indicated that the upper extremity nerves were all normal. That stated, at an earlier examination in February 2017, a VA examiner concluded that the Veteran had bilateral ulnar neuropathy and carpal tunnel syndrome. However, no nexus opinion was provided for those disabilities. As the Veteran will be undergoing a peripheral nerves examination to assess the severity of his lower extremities, and at that examination his upper extremities will be examined, an opinion regarding the etiology of his upper extremity conditions should be obtained. 5. Entitlement to service connection for sleep apnea. The Veteran asserts that he has a sleep condition, to include sleep apnea, that is due to service. The Board initially notes that to the extent the Veteran testified at his February 2022 Board hearing that he has experienced sleep issues, specifically nightmares and chronic sleep impairment, ever since service, the Board notes that chronic sleep impairment has been assessed as part of the Veteran's rating for PTSD. The Veteran has set forth that his sleep apnea may be secondary to his service-connected PTSD. VA treatment records also raise the possibility that his sleep apnea is related to medications, specifically opioids, taken for his disabilities. In light of the foregoing, the Board finds that the Veteran should be afforded a VA examination to assess the etiology of his sleep apnea. 6. Entitlement to a TDIU is remanded. Finally, with regard to the Veteran's claim for a TDIU, the Board finds that that issue is inextricably intertwined with the other remanded claims, since a decision on those matters may affect his entitlement to a TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the claim for the second issue). In addition, the Veteran's PTSD is rated as 50 percent disabling. He asserts that his inability to obtain and maintain gainful employment is due, in part, to his PTSD. That stated, he has not undergone a VA examination to assess the severity of his PTSD at any point during the relevant appeal period. Accordingly, he should be scheduled for a VA PTSD examination, and the examiner should comment on the effects of the Veteran's PTSD in an occupational setting. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lower extremity peripheral neuropathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is also asked to address the nature and etiology of any diagnosed upper extremity neuropathy. The examiner is advised that a February 2017 VA examiner diagnosed bilateral ulnar neuropathy and carpal tunnel syndrome. The examiner is asked to address whether it is at least as likely as not (approximately 50 percent probability) that those upper extremity conditions, or any other diagnosed neuropathies of the upper extremities are either related to service, or have been caused or aggravated by a service-connected disability. 2. Schedule the Veteran for an examination for his claimed sleep apnea. The examiner must review the claims file. After a review of the claims file, and interview and examination of the Veteran, the examiner is asked to answer the following: (a.) Is it at least as likely as not (approximately 50 percent probability) that the Veteran's diagnosed sleep apnea had onset in, or is otherwise related to the Veteran's active service? (b.) Is it at least as likely as not that the Veteran's diagnosed sleep apnea has been caused or aggravated by any of the Veteran's service-connected disabilities, to include PTSD, or by medications (specifically, opioids) taken for any of the Veteran's service-connected disabilities? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. The examiner should comment on the effects of the Veteran's PTSD on his ability to secure and follow substantially gainful employment. 4. Thereafter, readjudicate the issues on appeal, to include entitlement to a TDIU. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED