Citation Nr: 18123982 Decision Date: 08/03/18 Archive Date: 08/03/18 DOCKET NO. 18-11 035A DATE: August 3, 2018 ORDER New and material evidence having been received; the claim of entitlement to service connection for obstructive sleep apnea is reopened. New and material evidence having been received; the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. New and material evidence not having been received; the request to reopen the claim of entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected lumbar spine disability, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as due to service-connected chronic bronchitis, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as due to service connected disabilities (chronic pain), is remanded. FINDINGS OF FACT 1. In an April 2010 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for obstructive sleep apnea. An October 2010 rating decision additionally denied service connection for sleep apnea. The Veteran did not appeal the October 2010 decision, and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the October 2010 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for obstructive sleep apnea. 3. In an April 2013 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for posttraumatic stress disorder (PTSD). The Veteran did not appeal the April 2013 decision, and new and material evidence was not received within the one-year appeal period. 4. Evidence associated with the record since the April 2013 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. 5. In an October 2010 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a “neck injury.” In May 2011, the RO denied service connection for neck injury, claimed as “upper back.” In an April 2013 rating decision, the RO denied reopening a claim of entitlement to service connection for a neck injury. In March 2014, the RO again found that new and material evidence had not been submitted to reopen a neck injury claim. In December 2014, the Veteran filed a claim of entitlement to service connection for cervical spine stenosis secondary to his service-connected lumbar spine disability. The Veteran did not appeal the March 2014 decision, and new and material evidence was not received within the one-year appeal period. 6. New evidence tending to prove previously unestablished facts necessary to substantiate the underlying claim of entitlement to service connection for a cervical spine disability have not been received since the March 2014 decision, and the evidence received does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim seeking service connection for obstructive sleep apnea is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). 2. New and material evidence has been received and the claim seeking service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). 3. A March 2014 rating decision that denied reopening the Veteran’s claim for service connection for a cervical spine disorder is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.200 (2017). 4. New and material evidence has not been received to reopen the claim of service connection for a cervical spine disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from August to November 1983 and from September 1990 to June 1991. He had additional periods of Army National Guard service. These matters come before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran resides in the U.S. Virgin Islands. An October 2007 Board decision denied entitlement to service connection for “sleep disturbances” claimed as due to an undiagnosed illness from Gulf War service. The decision noted that the Veteran had not been diagnosed with chronic fatigue, sleep apnea, or a psychiatric-related sleep problem. The April 2010 rating decision that denied entitlement to service connection for sleep apnea did not consider the Board’s sleep disturbance decision to be a prior denial of sleep apnea. Here, the Board will not consider the 2007 denial of “sleep disturbance” to be an earlier denial of sleep apnea or a psychiatric disorder as the claim was so vague, related to an undiagnosed illness claim, and most resembled a claim for insomnia. This does not harm the Veteran as his claims of entitlement to service connection for obstructive sleep apnea and an acquired psychiatric disorder are being reopened. In October 2016, the Veteran filed a helpless child claim for his son, A.B. The RO denied this claim in a February 2017 rating decision. The record does not contain a notice of disagreement related to this decision; however, the Board notes that the March 2018 substantive appeal for the service connection claims on appeal included a note from the Veteran that Hurricanes Irma and Maria (September 2017) severely damaged St. Croix, and limited mail availability. The Board is using this opportunity to inform the Veteran and his representative that if he submitted a notice of disagreement regarding his helpless child claim, it is not currently of record. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that evidence may be considered new and material if it contributes “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its ratings decision.” Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA must not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead must examine and determine if it could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. As a general matter, service connection for a disability requires (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board must find new and material evidence in order to establish its jurisdiction to review the merits of the previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for obstructive sleep apnea and an acquired psychiatric disorder. In January 2010, the Veteran filed a claim of entitlement to service connection for sleep apnea. The claim was denied in an April 2010 rating decision. The RO noted that the Veteran had been diagnosed with insomnia during a psychiatric consultation, but that the evidence did not show that he had a current diagnosis of sleep apnea. An October 2010 rating decision continued the denial. The Veteran did not submit a timely notice of disagreement, nor submit additional new and material evidence for his sleep apnea claim, within one year of the October 2010 rating decision; as such, it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Evidence added to the claims file after the October 2010 rating decision included a January 2013 sleep study which diagnosed severe obstructive sleep apnea. The additional evidence is “new” in that it was not previously before agency decision makers at the time of the October 2010 rating decision, and is not cumulative or duplicative of evidence previously considered. The evidence is “material” because it relates to an unestablished fact necessary to substantiate—a current disability. In August 2011, the Veteran filed a claim of entitlement to service connection for “PTSD.” He did not provide a statement in support of this claim. An April 2013 rating decision denied entitlement to service connection for PTSD because the “evidence does not show a confirmed diagnosis of post-traumatic stress disorder which would permit a finding of service connection.” The rating decision did not specifically address any other psychiatric treatment or assessments the Veteran received through VA. The Veteran did not submit a timely appeal, and he did not submit new and material evidence for his psychiatric claim within one year of the April 2013 rating decision; as such, it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Regarding how psychiatric claims are addressed, Clemons v. Shinseki, 23 Vet. App. 1 (2009) provided that a veteran could not be held to a medical level of understanding of difference between psychiatric disorders, so that his claim for service connection for one must also be considered a claim for any other psychiatric disability whose presence is supported by the record. At the time of April 2013 rating decision, the evidence of record included the Veteran’s service treatment records, an April 2013 VA examination, and some VA treatment records. The VA treatment records included a diagnosis of depression (August 2009, July 2010), rule out adjustment disorder (November 2002), depressive disorder (February 2011), and an indication of anxiety related to a family history of colon cancer. The April 2013 VA examination found that the Veteran did not meet the criteria for PTSD or any other psychiatric condition under the DSM-IV. Evidenced added to the claims file after the April 2013 rating decision included a March 2016 VA psychiatry telehealth consultation where the Veteran was diagnosed with adjustment disorder, unspecified. He was afforded additional VA examinations in March 2015 and July 2017; the examiners found that the Veteran did not meet the criteria for any “mental condition” during both examinations. The additional evidence is “new” in that it was not previously before agency decision makers at the time of the April 2013 rating decision, and is not cumulative or duplicative of evidence previously considered. The evidence is “material” because it relates to an unestablished fact necessary to substantiate—a current disability. Although the 2015 and 2017 VA examiners found that the Veteran did not have a current psychiatric disorder, the 2016 VA treatment provider diagnosed adjustment disorder. As the Veteran’s April 2013 denial was based on a lack of a current diagnosis (although specifically PTSD), the evidence of a diagnosis in 2016 is considered material evidence. As noted above, there is a “low” threshold for finding that new and material evidence has been submitted. Under these circumstances, the criteria to reopen the claims of entitlement to service connection for sleep apnea and an acquired psychiatric disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a cervical spine disorder, to include as secondary to his service-connected lumbar spine disability The Veteran initially filed a claim of entitlement to service connection for a cervical spine disorder in June 2010, for “neck injury.” His claim was denied in an October 2010 rating decision. The RO noted that the Veteran had in-service treatment for cervical strain in 1984, and a 1989 motor vehicle accident (MVA) with left shoulder injury. However, he had no additional treatment for his cervical spine in service, and the RO determined that there was no evidence of a chronic disability in service, or in subsequent treatment records. Additionally, the August 2010 VA examination did not include any subjective complaints or objective findings related to his neck. In May 2011, the Veteran underwent a cervical spine MRI. This was new and material evidence of a current disability. Therefore, the October 2010 rating decision did not become final. In a May 2011 rating decision, the RO again denied the Veteran’s claim for a neck injury, finding that “although there is a record of treatment in service for cervical complaints, no permanent residual or chronic disability subject to service connection [was] shown by the service treatment records or demonstrated by the evidence following service.” In other words, the May 2011 denial found that there was no nexus between the Veteran’s newly diagnosed cervical spine stenosis and his in-service cervical strain. In August 2011, the Veteran submitted a supplemental claim for compensation form, which included a claim for “neck injury.” There was no argument provided and this is not considered a notice of disagreement. Additionally, he provided copies of some service treatment records related to his lumbar spine, and an article about degenerative disc disease (DDD) of the back which noted that it was a natural part of the aging process and listed some causes of back pain and injury, including that DDD could begin with an injury to a cushioning disc in the spine. The service treatment records were duplicates, and the article did not relate to an unestablished fact necessary for the Veteran’s neck claim as it was not specific to him and addressed possible causes of back DDD. A December 2011 statement from his wife addressed his continued back pain as being in the lumbar region and did not mention his neck. In February 2012, the Veteran submitted duplicate copies of his service treatment records related to his 1984 and 1989 injuries. As such, the May 2011 rating decision became final after a year without a notice of disagreement or submission of new and material evidence. An April 2013 rating decision denied the Veteran’s claim to reopen a claim of entitlement to service connection for a neck injury, finding that new and material evidence had not been submitted. In December 2013, the Veteran submitted a claim to reopen his neck condition claim. He did not submit a notice of disagreement with the April 2013 rating decision, or provide a statement/argument related to his claim. A March 2014 rating decision denied the Veteran’s claim to reopen, finding new and material evidence had not been submitted. In December 2014, the Veteran’s representative submitted his request for service connection for “spinal stenosis of the cervical spine region with numbness of upper limbs secondary to the already service-connected back condition and/or due to motor vehicle accident of 1989.” Again, the Veteran did not submit a notice of disagreement, nor submit new and material evidence related to his cervical spine claim, within one year of the March 2014 rating decision and it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Historically, the Board notes that the Veteran has separately sought service connection for a left shoulder disability. This claim was initially denied in a January 1998 rating decision. A claim to reopen his left shoulder claim was most recently denied in a March 2015 rating decision. The Veteran did not appeal this issue. The Veteran’s claims file contains a significant number of treatment records. Prior to the March 2014 rating decision, the claims file contained his service treatment records, some private treatment records, and VA treatment records. The Board will cite some pertinent records, but all records were reviewed in making this decision. Service treatment records included that the Veteran fell in a ditch/creek in May 1984 and injured his face, neck, chest, and leg. He had right-sided pain in his neck when looking down. A June 1984 record noted resolving cervical strain, with limited rotation and lateral bending on the right side. He was given a two-week profile for cervical strain. In February 1989, the Veteran was a passenger in a MVA. The emergency care record noted the Veteran injured his left wrist and knee. He also had a diagnosis of left shoulder bursitis. In April 1989, the Veteran complained of wrist, shoulder, knee and neck pain following the MVA which made him unable to return to his civilian job. May 1989 testing did not reveal any weakness in his left shoulder such that he would be prevented from returning to his employment. There were no additional complaints related to his cervical spine in service treatment records, although he did continue to complain of low back pain from 1989 onward. An April 1996 periodic medical evaluation showed a normal spine examination. On his report of medical history from April 1996, the Veteran reported several medical problems, but did not complain of ongoing cervical spine symptoms. VA and private treatment records available prior to the March 2014 rating decision included that the Veteran was in a MVA in October 1996 which caused jaw pain and mild tenderness to the neck on rotation. A November 1996 record noted he had mild tenderness to C6-7 and was assessed with mild cervical trauma from car accident, and that he was seeking “Workman’s Compensation” for the 1996 MVA. A November 1997 record included the Veteran’s complaint of left shoulder pain following an August 1997 MVA. In November 2000, the Veteran reported his chronic low back pain was exacerbated by a MVA in June 2000. In September 2001, he complained of neck and shoulder pain with radiation down his left arm. He had sharp pain in palpation of his C6-7 area, and he reported the “onset of neck pain three weeks prior.” An October 2001 CT scan of the neck was negative. He continued to complain of neck pain in November 2001 and July 2002. A July 2002 record noted he had the “progression neck pain of one year evolution with no trauma associated that is present all day.” A January 2004 evaluation of the Veteran’s lumbar spine included evaluation of his cervical spine with a normal range of motion, and without indication of painful motion, spasm, weakness, tenderness, or postural abnormalities (“does not apply”). There is a gap in treatment records related to his neck from 2004 to roughly 2010. A May 2010 cervical MRI showed degenerative focal bulge of the posterior aspect of the C4-5 and C5-6 disks with central spinal stenosis. In February 2013, the Veteran reported to a VA provider that he had suffered chronic lower back and cervical pain from an accident 25 years prior. A March 2013 cervical MRI showed “discogenic disease with centrally herniated nucleus pulposus as somewhat eccentric to the left C5-6.” In February 2012, the Veteran submitted a statement outlining his 1984 and 1989 injuries, and arguing that he had “come to the conclusion that this accident and injury re-activated [his] prior condition with first falling in a ditch.” Evidence received since the March 2014 rating decision includes March 2015 and July 2017 VA examinations, and ongoing VA treatment records. The March 2015 VA examiner provided a negative secondary service-connection opinion between the Veteran’s cervical spine disorder and his lumbar spine disability. The rationale was that the “cervical and lumbar spines are two different anatomical areas with different bony structures and nerve supplies that are unrelated to each other.” The July 2017 examiner also provided negative nexus opinions, and remarked that “as a person ages, the bones and cartilage that make up the…neck gradually develop wear and tear” and that this can include dehydrated disks, herniated disks, bone spurs, and stiff ligaments. The examiner noted that the neck and back were “different anatomical sites and that any incident or diagnosis that affects one site is independent of the other.” The examiner also reviewed the record and reported that the Veteran’s service treatment records did not include a diagnosis of cervical spondylosis or degenerative disc disease, and that there was no evidence he developed either within a year from separation. The ongoing VA treatment records did not include any pertinent information regarding the Veteran’s cervical spine service connection claim. No additional diagnoses were made, and no additional nexus opinions were contained in the record. Additionally, the Veteran and his representative did not provide and new or more elaborate details, or any new argument addressing the cervical spine claim after the March 2014 rating decision. The Board notes that the December 2014 claim included that the Veteran’s cervical spine disability may be due to his service-connected lumbar spine disability. The Board also notes that the Veteran was granted service connection for his lumbar spine in a 2008 rating decision, so the option for secondary service connection had been available during prior denials. A new etiological theory of entitlement does not constitute a new claim. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). New and material evidence must be submitted following the prior final denial of service connection in March 2014, despite the change in theory from direct to secondary service connection. Some of the evidenced added to the claims file after the March 2014 rating decision is “new” in that it was not previously before decisionmakers. Although the Veteran reported to VA examiners that he injured his neck in a MVA in 1989, this argument had been made prior to the March 2014 rating decision. However, the new evidence (VA examinations) is not “material” as it does not relate positively to an unestablished fact necessary to substantiate the claim. The Veteran was noted to have injured his neck in service, without “chronic” residuals and to have a current disability at the time of his 2014 denial. The Veteran was missing evidence tending to link his current cervical spine disorder to service, or to a service-connected disability. The new evidence added after the March 2014 rating decision included two VA examinations (2015 and 2017) which provided negative secondary nexus opinions. The 2017 examination also provided a vague negative direct service connection opinion by noting that the Veteran was not diagnosed with cervical spondylosis or degenerative disc disease in service or within one year of discharge. The Board must consider all evidence of record, including any new VA examinations obtained by the RO, when determining whether a claim should be reopened, but the duty to ensure that an adequate examination was provided, as set forth in Barr v. Nicholson, 21 Vet. App. 303 (2007), is not applicable unless a claim is reopened for consideration on the merits. Once the Board decides that a claim is not be reopened, the conditional duty to provide a new VA examination is extinguished. See 38 C.F.R. § 3.159 (c)(4)(C)(iii); Woehlart v. Nicholson, 21 Vet. App. 456, 463 (2007). Because the Board determines that the Veteran has not submitted new and material evidence, the adequacy of the above examination is moot, and there is no need to afford the Veteran a new VA examination. Here, the new evidence included two negative nexus opinions. Evidence that does not support a claim for service connection is not considered to be new and material evidence. See Woehlart, supra at 462. As new and material evidence to reopen the previously denied claim of service connection for a cervical spine disability has not been received, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to service-connected chronic bronchitis is remanded. A March 2015 VA examination provided a negative nexus opinion between the Veteran’s sleep apnea and his exposure to fumes, dust, smoke, and other contaminants during service in Saudi Arabia. Although the examiner noted that the “contributory factors to developing OSA were obesity predisposing to collapse of pharyngeal airways, elongated uvula, and loss of normal pharyngeal muscle tone,” he did not address whether the Veteran’s OSA began during or was otherwise related to his active service. A July 2017 VA examination provided a negative secondary nexus opinion, finding that medical literature did not support an etiological relationship between sleep apnea and chronic bronchitis. This examination did not include a direct nexus opinion. Although the Veteran was diagnosed with OSA via a sleep study in January 2013, he was initially referred to the sleep apnea clinic in November 2002. It is not clear from the record why he was not seen by the sleep clinic prior to January 2013. The Veteran noted on an April 1991 report of medical history that he had trouble sleeping. On remand, an addendum direct nexus opinion must be sought. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as due to service connected disabilities (pain) is remanded. The Veteran has been afforded VA psychiatric examinations in May 2005, April 2013, May 2015, and July 2017. During each of these, the examiners determined that the Veteran did not have a mental health condition/psychiatric diagnosis. The 2017 examination was provided under the DSM-V, and prior examinations under the DSM-IV. However, a review of his VA treatment records shows that the Veteran has been assessed with depression (November 2002), rule out adjustment disorder (August 2009), depression and insomnia (July 2010), depressive disorder and rule out mood disorder due to chronic pain (February 2011), and adjustment disorder, unspecified (March 2016). The 2015 and 2017 VA examinations did not address the discrepancy between his being diagnosed with psychiatric disorders via the psychiatry telehealth consultations and their findings that he did not have a current psychiatric condition. On remand, the Veteran must be afforded an additional examination, with nexus opinion if a disorder is diagnosed. Ongoing VA treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain ongoing VA treatment records from March 2016 to the present. All records/responses received must be associated with the electronic claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea at least as likely as not (50/50 probability or greater) began during or is otherwise related to his active service. The examiner should note that the Veteran was initially referred to the sleep apnea clinic in November 2002, but was not tested until January 2013. The examiner should also note the Veteran’s April 1991 selection of “trouble sleeping” on his report of medical history. A complete rationale/explanation must accompany each opinion expressed. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. For any currently diagnosed psychiatric disorder (“current” is defined as from December 2013 to the present), the examiner should provide the following opinions: (a.) Is at least as likely as not (50/50 probability or greater) the psychiatric disorder is related to the Veteran’s service, to include his 1989 MVA? (b.) Is at least as likely as not (50/50 probability or greater) the psychiatric disorder is due to a service-connected disability, to include as due to chronic pain from his service-connected disabilities? If an acquired psychiatric disorder is not diagnosed, the examiner must explain the discrepancy between the VA examinations which find that the Veteran does not meet the criteria for a diagnosed psychiatric disorder, and the VA treatment records (telehealth) which include assessments of various disorders (depression, adjustment disorder, depressive disorder). A complete rationale/explanation must accompany each opinion expressed 4. Thereafter, readjudicate the Veteran’s claims on appeal. If the decision remains averse to the Veteran, he and his representative should be furnished a SSOC and afforded an appropriate period of time to respond. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel
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