Citation Nr: 22017386 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-56 711 DATE: March 24, 2022 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for residuals of cellulitis of the left leg. REMANDED Entitlement to service connection for cellulitis (claimed as severe muscle infection) is remanded. Entitlement to service connection for neck disability as secondary to residuals of cellulitis of the left leg is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected persistent depressive disorder is remanded. FINDING OF FACT In September 2015, the Board of Veterans' Appeals (Board) denied the claim for service connection for a bilateral leg disability, claimed as cellulitis and muscle infection; since that decision, new and material evidence has been received to reopen the claim. CONCLUSIONS OF LAW 1. The September 2015 decision that denied service connection for bilateral leg disability (claimed as cellulitis and muscle infection) is final. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. 2. The claim for service connection for residuals of cellulitis of the left leg is reopened. 38 U.S.C.§§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1975 to November 1976. The claim regarding the Veteran's cellulitis comes to the Board from a May 2016 rating decision. The Veteran filed a notice of disagreement (NOD) in June 2016, which resulted in an October 2016 statement of the case (SOC). Thereafter, the Veteran filed a substantive appeal in November 2016. Subsequently, the Board denied the claim by way of a March 2018 decision, which was appealed to the United States Court of Appeals for Veterans Claims (Court). By Order dated September 2019, the Court granted a Joint Motion for Remand (JMR) vacating the March 2018 decision and remanding the case to the Board. The claim was returned to the Board and remanded to the Agency of Original Jurisdiction (AOJ) in April 2020. The claims regarding the Veteran's neck disability and sleep apnea come to the Board from a November 2018 rating decision. In December 2018, the Veteran filed a NOD, which resulted in an April 2020 SOC. Subsequently, he filed a substantive appeal in June 2020. Notably, a hearing regarding the Veteran's entitlement to reopen the previously denied claim for cellulitis was conducted in March 2017 and the transcript is of record. The Veterans Law Judge (VLJ) who conducted the March 2017 hearing is no longer employed by the Board, and the Veteran was notified about this by way of a February 2020 letter. In his June 2020 substantive appeal, the Veteran requested a videoconference hearing regarding the issues of the claimed neck disability and sleep apnea. Accordingly, a hearing was conducted regarding all the issues on appeal, including the claim regarding the Veteran's cellulitis, before the undersigned VLJ in September 2021 and the transcript is of record. 1. New and material evidence has been received to reopen a claim of entitlement to service connection for residuals of cellulitis of the left leg. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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 (a); Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. 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. 38 C.F.R. § 3.156 (c). In this case, the Veteran's claim regarding cellulitis was initially denied in a February 1996 rating decision, and most recently in a September 2015 Board decision. The Veteran's representative contends that the claim must be reconsidered de novo under 38 C.F.R. § 3.156 (c) because service treatment records (STRs) were added to the claims file in December 2008 and February 2016. In a brief submitted in September 2018, the Veteran's representative asserts "when the Board denied the claim on the merits in September 2015, only 30 substantive pages of the STRs were possibly considered. Notably, no entry or exit examinations were of record at this time." The Board disagrees with the representative's contentions. While the December 2008 STRs were relevant service department records added to the claims file after the initial denial in 1996, the Board's September 2015 decision fully considered the content of those STRs. As to the STRs added in February 2016, they are not relevant service department records. The mere fact that additional STRs were added to the claims file after the Board's decision is not grounds for reconsideration. Rather, 38 C.F.R. § 3.156 (c) requires reconsideration in cases where the records are relevant. Here, the Veteran's representative has not explained how the STRs added in February 2016 are relevant specifically to the claim regarding the Veteran's cellulitis. The Board has reviewed said STRs carefully and does not find that they contain relevant information regarding the Veteran's cellulitis, or any other in-service incident related to the current claim. Accordingly, those STRs are not relevant records to warrant reconsideration of the claim under 38 C.F.R. § 3.156 (c). The Veteran's representative also asserts that a buddy statement by the Veteran's mother submitted in October 1995 was not previously considered. See hearing transcript at 5. That statement, however, is not a service department record that warrants reconsideration under 38 C.F.R. § 3.156 (c). The lay statement was already in the claims file prior to the February 1996 rating decision; thus it does not impact the finality of the February 1996 rating decision or the September 2015 Board decision. In sum, the Board has carefully considered the Veteran's representative's arguments, but finds that reconsideration under 38 C.F.R. § 3.156 (c) is not warranted. However, as explained in detail below, the Board finds new and material evidence to reopen the claim. To that end, the September 2015 Board decision denied entitlement to service connection for a bilateral leg disability, claimed as cellulitis and a muscle infection. The decision was not appealed, and reconsideration was not requested. The denial is final. 38 C.F.R. §§ 20.1001-1002. The September 2015 denial was based on the Board's finding that the evidence at the time did not establish the nexus element of a service connection claim. Since September 2015, the Veteran testified at the March 2017 and September 2021 hearings. During the March 2017 hearing, the Veteran testified that his doctor told him that his cellulitis in service was severe enough to cause muscle and nerve damage. See hearing transcript at 11. Moreover, during the September 2021 hearing, the Veteran testified that his current symptoms started in service. See hearing transcript at 18. In addition to his testimony, private medical opinions from physician assistant M.R. indicating that the Veteran's cellulitis is at least as likely as not related to the Veteran's military service were added to the claims file in July 2016 and April 2017. Additionally, a private medical opinion from Dr. G.M., who concluded that the Veteran's cellulitis is at least as likely as not related to his military service, became part of the file in April 2017. Dr. G.M reasoned that the Veteran had "changes [in] skin color and sensation in the skin" during evaluation. The Veteran's testimony and the medical opinions from M.R and Dr. G.M. are new evidence added since the Board's September 2015 decision. To the extent they go towards establishing the nexus element of a service connection claim, they are material. Considering the low threshold for reopening claims, the Board finds that there is new and material evidence that warrants reopening the claim of entitlement to service connection for residuals of cellulitis of the left leg. REASONS FOR REMAND 2. Entitlement to service connection for cellulitis (claimed as severe muscle infection) is remanded. The Veteran contends that service connection for residuals of cellulitis of the left leg is warranted. Since the claim to reopen was filed, the Veteran submitted private medical opinions in July 2016 and April 2017 from a physician assistant, M.R., who indicated that the Veteran's cellulitis is at least as likely as not related to his military service. In addition, the Veteran also submitted a similar opinion from Dr. G.M. in April 2017. These opinions, however, are inadequate because they are not supported by complete rationales. The record does not have an adequate medical opinion on this question during the appeal period. The Board finds that the private opinions, while not adequate on their own, are sufficient to trigger the duty to assist by providing an examination. As such, a remand to obtain an adequate opinion is necessary before the claim can be adjudicated. 3. Entitlement to service connection for neck disability as secondary to residuals of cellulitis of the left leg is remanded. Because a decision on the issue of service connection for residuals of cellulitis of the left leg could significantly impact a decision on the issue of service connection for neck disability, the issues are inextricably intertwined. As such, a remand of the claim for service connection for neck disability is required. 4. Entitlement to service connection for sleep apnea, to include as secondary to service-connected persistent depressive disorder is remanded. The Veteran asserts that service connection for sleep apnea is warranted as secondary to his service-connected psychiatric disability, or alternately as having its onset during service. Specifically, in a correspondence submitted in February 2020, the Veteran's representative asserts that the Veteran's sleep apnea is secondary to his service-connected psychiatric condition. The representative also attached medical literatures that reflect that antipsychotic medication may cause weight gain, as well as indicate an association between obstructive sleep apnea and psychiatric conditions, such as depression and anxiety. The Veteran underwent VA examination in March 2020, where the examiner noted that he has a diagnosis of central and obstructive sleep apnea. The examiner appears to have attempted to address the theory raised by the Veteran, but the resulting medical opinion is internally inconsistent and does not actually address the theory of secondary service connection. The examiner indicated that medication, specifically hydrocodone, is required for control of the Veteran's "condition." The examiner, however, provided a nexus opinion that is inadequate for two reasons. First, when completing the medical opinion disability benefit questionnaire, the examiner checked both the box that states that the claimed condition is at least as likely as not related to his service, and the box that indicates that the claimed condition is less likely than not related to his military service. Second, the rationale provided by the examiner concludes that sleep apnea is less likely due to "the Veteran's service-connected behavior health condition." However, it goes on to find that hydrocodone use is likely to have caused the sleep apnea. The examiner's rationale states: "Review of the Veteran's records demonstrate usage of prescribed opiod (hydrocodone) predates his Sleep Apnea Condition. As this medication is commonly known to cause sedation and is a known risk factor for both Obstructive and Central Sleep Apnea, it is reasonable to opine that the Veteran's current Sleep Apnea conditions are secondary to his medication usage." VA treatment records list hydrocodone as one of the Veteran's documented allergies. Records dated in 2011 and 2012 show prescription of hydrocodone for arthritis pain but by January 2012 the Veteran reported it was not helping his pain. By July 2012 it was listed as an allery/adverse reaction and was no longer being prescribed. Oxycodone was prescribed instead. He appears to have continued to take oxycodone for breakthrough pain thereafter. See VA treatment records dated through August 2017 and private treatment records dated in 2018. As the hydrocodone and later oxycodone appear to have been prescribed for physical pain, and the Veteran is not service-connected for any disability other than persistent depressive disorder, it is unclear on what basis the opioid medications could be related to a service-connected disability. In the June 2020 VA Form 9, his representative reiterated that the Veteran "wished to have the sedative properties of his service-connected mental health medication reviewed for a nexus." The representative stated that the VA examiner "fails to opine on this basis at all" and contrasted it with the VA examiner's discussion of "sedating medication." The Board agrees with the representative's assessment that the VA examination report was not responsive to the actual theory being argued by the Veteran. It also finds that the Veteran is not pursuing a theory of sleep apnea due to the hydrocodone or oxycodone prescribed for pain caused by non-service-connected disabilities. For these reasons, the Board concludes that a remand is necessary to obtain another opinion that provides a clear conclusion and rationale addressing the theory of secondary service connection due to medication prescribed for persistent depressive disorder. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the claimed residuals of cellulitis of the left leg. An in-person examination is not required unless the clinician determines it is necessary. The clinician is asked to review all relevant evidence in the claims file. The clinician should then address the following: a) Are the claimed residuals of cellulitis of the left leg related to service? Why or why not? The examiner should consider and comment on the contention that the Veteran's current disability is related to his treatment for cellulitis in December 1975. Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the claimed sleep apnea. An in-person examination is not required unless the clinician determines it is necessary. The clinician is asked to review all relevant evidence in the claims file. The clinician should then address the following: (a) Did the Veteran's sleep apnea begin during service? Why or why not? Please discuss the Veteran's reported history of symptoms in the hearing transcript. (b) Did the medication or treatment prescribed for the Veteran's service-connected persistent depressive disorder cause the Veteran's sleep apnea? Why or why not? (c) Did the medication or treatment prescribed for the Veteran's service-connected persistent depressive disorder aggravate (worsen beyond the natural progression) the Veteran's sleep apnea? Why or why not? (d) Did the Veteran's service-connected persistent depressive disorder, including medication or treatment for this condition, cause obesity? (e) if the answer to (d) is affirmative, would the Veteran's sleep apnea not have occurred but for the obesity?Wh Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (Continued on the next page) 3. After completing this development, readjudicate the issue of entitlement to service connection for a neck disability, to include as secondary to cellulitis. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.