Citation Nr: 22015223 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-05 566 DATE: March 16, 2022 ORDER The previously denied claim of entitlement to service connection for a neck disability is reopened and to that extent only the appeal is granted. REMANDED Entitlement to service connection for neck disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for sleep disability is remanded. Entitlement to service connection for right leg disability is remanded. FINDINGS OF FACT 1. In an April 2017 final decision, the Board denied service connection for neck disability finding no nexus to service. 2. Additional evidence received since the April 2017 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for neck disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The Board's April 2017 decision denying service connection for neck disability is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for neck disability. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision. In April 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is in the claims file. The Board notes the Veteran filed a claim for service connection for psychiatric disability in January 2019. In April 2019, VA sent the Veteran a letter indicating that his claim for psychiatric disability is already on appeal. However, while the Veteran's claim for sleep disability is intertwined with his claim for psychiatric disability to a certain degree, there is no claim for service connection for psychiatric disability on appeal before the Board at this time. Therefore, the Veteran's psychiatric claim is referred to the agency of original jurisdiction for appropriate action, including any development and adjudication deemed necessary. See 38 C.F.R. § 20.904(b) (2020) (continuing to provide for Board referral of unadjudicated claims in legacy cases). 1. The previously denied claim of entitlement to service connection for a neck disability is reopened and to that extent only the appeal is granted. In an April 2017 decision, the Board denied service connection for neck disability on the basis that there was no link to service. The Veteran did not appeal the decision. The decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the April 2017 decision, the record contained service treatment records, positive and negative nexus opinions, testimony from the Veteran, and treatment records. The evidence received since the time of the Board's April 2017 decision includes new February 2018 and January 2019 private opinions in which the Veteran's chiropractor opines the Veteran's current neck condition is related in part to his in-service fall. This evidence was not before adjudicators when the Veteran's claim was last finally denied and it is not cumulative or redundant of the evidence of record at the time of that decision. The new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for neck disability (connection to service) and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for neck disability is remanded. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for sleep disability is remanded. 4. Entitlement to service connection for right leg disability is remanded. Outstanding Records In addition to the reasons explained below, all issues must be remanded as the record reflects the Veteran's claims file is not currently complete. Remand of the claims is appropriate to obtain outstanding treatment records. VA treatment records show that potentially relevant private treatment records were scanned into the Veteran's VA medical file. See, e.g., August 2021, February 2021, April 2020, and October 2017 VA Treatment Records (noting Veteran's neurology, primary care, and other treatment scanned into system). However, such records are not in the Veteran's claims file. Neck Disability As discussed above, the Board has found that new and material evidence has been received sufficient to reopen the Veteran's claim for service connection for neck disability. In the January 2018 rating decision and December 2018 statement of the case, the Regional Office found that no new and material evidence had been received to reopen the claim and did not adjudicate the underlying claim on the merits. Accordingly, remand is also warranted to allow the Regional Office the opportunity to readjudicate this issue on the merits in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hearing Loss The Board notes that the December 2017 VA contract examination did not show a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. However, the Veteran's VA treatment records show that an audiogram was obtained in October 2017 which showed speech identification scores of 92 percent for the right ear and 88 percent for the left ear. The October 2017 audiogram with the complete hearing threshold levels is in the Veteran's VA medical file but not in the claims file. Accordingly, remand is appropriate to obtain this VA audiogram. The Regional Office should also attempt to ensure that any additional information regarding the speech identification scores noted in the October 2017 VA treatment is obtained, including whether any word recognition scores under the Maryland CNC test were obtained as part of the October 2017 audio testing. Sleep Disability The Veteran was diagnosed with obstructive sleep apnea in December 2008. See December 2008 VA Treatment Record. He asserts that his sleep problems began in service and are secondary to pain from his service-connected disabilities. The Veteran's wife reported that she noticed the Veteran gasping for air when he was sleeping at night during service. She reported that eventually he sought treatment when this condition did not get better and was diagnosed with sleep apnea. See April 2021 Statement. No VA examiner has opined as to whether the Veteran's sleep disability is related to service or secondary to a service-connected disability. Accordingly, remand is appropriate to obtain such VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Right Leg Disability The Veteran seeks service connection for right leg disability, asserting that such disability had an onset in service or is related to injuries during service. The Veteran was treated for right knee pain after hitting his knee on a track vehicle during service in May 1992. The Veteran was treated again for MCL sprain in his right knee after playing football during service in September 1992. The Veteran reports that his only knee injuries were during service and that he has had chronic knee pain and swelling on and off since his injuries in service. See September 2017 VA Treatment Record. In seeking treatment in September 2017, the Veteran reported that he had been using a balm on it, taking Meloxicam, and taking Tylenol as needed. See September 2017 VA Treatment Record. A September 2017 x-ray of the right knee showed early degenerative changes. The September 2017 VA physician who interpreted the x-ray noted the Veteran had some bone spurs which indicated early arthritis. No VA examiner has opined as to whether the Veteran has a current right knee disability which had an onset in service or is related to service. Accordingly, remand is appropriate to obtain such VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). While this matter is on remand, any additional outstanding private and VA treatment records should be obtained, including VA treatment records from January 2022 to the present. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain any additional VA treatment records, to include VA treatment records from January 2022 to the present. Associate with the claims file all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran's claims file, including the non-VA treatment records identified in the August 2021, February 2021, April 2020, and October 2017 VA Treatment Records and the October 2017 VA audiogram. For the October 2017 VA audiogram, to the extent possible, the Regional Office should attempt to ensure that any additional information regarding the speech identification scores noted in the October 2017 VA treatment is obtained, including whether any word recognition scores under the Maryland CNC test were obtained as part of the October 2017 audio testing. 3. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any sleep disability, to include obstructive sleep apnea, present at any time during the claim period even if resolved. In doing so, the examiner should specifically comment on the Veteran's sleep complaints in mental health treatment and opine as to whether the Veteran has a sleep disability (in addition to the sleep apnea) separate from his diagnosed depressive disorder. For each disability, the examiner should opine regarding whether it is at least as likely as not that the disability: (a) had an onset in service; (b) is otherwise related to service; or (c) is caused by or aggravated by any of the Veteran's service-connected disabilities. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record. The examiner should specifically address the Veteran's wife's report that she noticed the Veteran gasping for air when he was sleeping at night during service and that when he eventually sought treatment he was diagnosed with sleep apnea and the Veteran's contention that pain from his service-connected disabilities contributes to his sleep problems. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. 4. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any right leg or right knee disability present at any time during the claim period, even if resolved. For each disability, the examiner should opine regarding whether it is at least as likely as not that the disability: (a) had an onset in service; or (b) is otherwise related to service. For any arthritis disability, the examiner should also opine regarding whether it is at least as likely as not that the disability manifested to a compensable degree within one year of separation from service (i.e., January 1997). The examiner should consider all medical and lay evidence of record. The examiner should specifically address the May 1992 and September 1992 STRs regarding right knee problems, the Veteran's report that his only knee injuries were during service, the Veteran's report that he has had chronic knee pain and swelling on and off since his injuries in service, the Veteran's report that he has been using a balm on his knee, taking Meloxicam, and taking Tylenol as needed, and the September 2017 VA notations of early degenerative changes and early arthritis. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. 5. After the above development, and any other development deemed necessary, to include additional VA medical opinion regarding hearing loss if deemed appropriate after reviewing the October 2017 audiogram, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Purcell, 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.