Citation Nr: 1124597 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 09-32 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a sleep disorder. 2. Entitlement to service connection for a sleep disorder claimed as sleep apnea to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARINGS ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran had active military service from October 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee. The issue of entitlement to service connection for a sleep disorder claimed as sleep apnea to include as secondary to service-connected PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An August 2006 RO decision denied the appellant's claim for entitlement to service connection for a sleep disorder. The Veteran was notified of his appellate rights, but did not appeal the decision. 2. Evidence associated with the claims file after the last final denial in August 2006 is new evidence, and when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's claim. CONCLUSIONS OF LAW 1. The August 2006 RO rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. New and material evidence has been received, and the claim of entitlement to service connection for a sleep disorder, to include as secondary to service-connected PTSD, is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letter dated in January 2008 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein. This letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The January 2008 letter provided this notice to the Veteran. With respect to the Veteran's request to reopen previously disallowed claims, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence - evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation, however, does not modify the requirements discussed above. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought. The Board notes that the January 2008 letter did not contain Kent notice, however, in light of the favorable decision to reopen the Veteran's claim for sleep apnea secondary to service-connected PTSD herein, the Board finds that any deficiency in complying with VCAA concerning a reopened claim is harmless error and that no useful purpose would be served by remanding the appeal to the RO in this regard. See, e.g., Kent v. Nicholson, 20 Vet. App. 1 (2006). As discussed in more detail in the Remand below, there is a further duty to assist him and that will be accomplished before consideration of his claim on the merits. The Board observes that the January 2008 letter was sent to the Veteran prior to the August 2008 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Dingess, supra. Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence in needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant service treatment records, VA treatment records, and private treatment records in support of the Veteran's claims. In this regard, the Veteran's service treatment records, VA treatment records, and private treatment records are associated with the claims folder. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that there is no duty to provide an examination until after a claim has been reopened. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). See also Woehlaert v. Nicholson, 21 Vet. App. 456 (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence.) In this instance the Board notes that the Veteran was afforded a VA examination in May 2008 with regard to the issue of entitlement to service connection for sleep apnea to include as secondary to service-connected PTSD. However, as will be further explained in the Remand section below the examination was inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis Initially, the Board acknowledges that the Veteran's current claim is for a sleep disorder claimed as sleep apnea to include as secondary to service-connected PTSD, while previously the Veteran's claim was for a sleep disorder secondary to herbicide exposure, specifically Agent Orange, however, a new etiological theory does not constitute a new claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (Fed. Cir. 2005) (denial of a claim by the Board is a decision as to all potential theories of entitlement, not just those considered and rejected); Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (on direct appeals to the Board, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed). Therefore the Board finds that the Veteran's claim for entitlement to service connection for a sleep disorder claimed as sleep apnea to include as secondary to service-connected PTSD is based upon the same factual basis as his original claim of entitlement to service connection for a sleep disorder secondary to herbicide exposure, specifically Agent Orange, which was denied, initially, in a February 2002 rating decision and again in an August 2006 rating decision. As such, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105 (West 2002). However, the Veteran may request that VA reopen his claim upon the receipt of "new and material" evidence. 38 U.S.C.A. § 5108 (West 2002). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. Id. See also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). According to 38 C.F.R. § 3.156(a) (2010), "new and 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. Id. The Board notes that service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a pre-existing injury in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (2002); 38 C.F.R. § 3.303(a) (2010). VA regulations provide that a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2010). VA will not concede, however, that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The Veteran's initial claim of entitlement to service connection for a sleep disorder was denied by RO rating decision dated February 2002. At the time of the initial final denial in this matter, the evidence under consideration consisted of the Veteran's service treatment records dating from September 1965 to May 1969; private treatment reports dating from October 1996 to May 1997, and a statement from the Veteran dated October 2001. The February 2002 rating decision indicated that the basis for the RO's denial was that the evidence of record, to include the Veteran's service treatment records and post-service private treatment records, were silent for complaints of, treatment for, or diagnosis of a sleep disorder. The Veteran did not timely appeal this decision; therefore, it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). The Veteran subsequently filed to reopen his claim for a sleep disorder in December 2005. The Veteran's claim to reopen was denied in the August 2006 rating decision because the Veteran failed to submit new and material evidence. The relevant evidence at the time of the August 2006 denial consisted of the evidence previously of record, the Veteran's military personnel file, VA treatment records from the Nashville VA Medical Center (VAMC) dating from February 2006 to April 2006, VA treatment records from primary care Adamsville dating from January 2001 to April 2006, and an August 2006 VA examination report. The Veteran did not timely appeal this decision; therefore, it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). The Veteran again filed to reopen his claim for service connection for a sleep disorder claimed as sleep apnea in July 2007. An October 2007 rating decision denied the Veteran's request to reopen his claim because the Veteran failed to constitute new and material evidence. A November 2007 statement from the Veteran characterized as a notice of disagreement noted that the Veteran did not claim a sleep disorder secondary to herbicide exposure, specifically Agent Orange, but rather, sleep apnea secondary to service-connected PTSD, and as such was not reopening his previous claim for service connection for a sleep disorder, but rather making a new one. The Veteran's claim, as clarified, was denied in an August 2008 rating decision. Although the October 2007 rating decision did consider whether new and material evidence had been received to reopen the Veteran's claim, the August 2008 rating decision did not address whether the Veteran had provided new and material evidence, and considered the Veteran's secondary service connection claim without comment or analysis regarding the reopening of prior final claims. However, as noted above, a new etiological theory does not constitute a new claim. Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet App 307 (2006). As such, the Board finds that the Veteran's claim is an application to reopen the previously denied claim for service connection for a sleep disorder. Evidence added to the record since the August 2006 denial consists of the evidence previously of record, private treatment reports dating from February 2006 to June 2007, Memphis, Tennessee VAMC treatment records dating from January 2008 to February 2008, a May 2008 VA examination report, a June 2007 letter from a private clinic director, various statements in support including one from a registered nurse, and various statements by the Veteran. Following the August 2008 decision, additional evidence was submitted. The evidence submitted consisted of various statements in support, various statements by the Veteran, private treatment reports dated December 2009, and VA treatment records from the Memphis, Tennessee, VAMC dating from January 2009 to December 2009. The Board notes that the new evidence since the last prior final denial provided the Veteran with a diagnosis of sleep apnea, as well as several theories of etiology. As such, the evidence does address an unestablished fact necessary to substantiate a claim, and the evidence is found to be both new and material. Specifically the Board notes that the December 2009 private treatment report notes that depression can disturb sleep and contribute to daytime sleepiness and fatigue. The May 2008 VA examination indicated that the Veteran did have a current diagnosis of sleep apnea and noted that while the relevant psychological literature did not seem to support an etiological connection between sleep apnea and PTSD, there was evidence that the Veteran suffered from sleep problems that were associated with his PTSD. Finally a June 2007 letter from a private clinic director noted that the Veteran was being treated for PTSD and that one of the persistent symptoms of this disorder involved difficulty falling or staying asleep and disturbing dreams which could contribute to somatic complaints. In consideration of all of the above, the Board finds that evidence obtained, since the last final denial in August 2006, is both new and material evidence because the evidence was not previously of record and it addresses an unestablished fact necessary to substantiate the Veteran's claim. In this regard the Board observes that the Veteran's claim was originally denied in the February 2002 rating decision because there was no evidence that the Veteran had a sleep disorder that was incurred in or aggravated in service or the result of herbicide exposure. As noted above, the new evidence of record addresses the issue of a current disability, as well as etiology. The Board notes that the Court recently addressed requirements for new and material claims in Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). Specifically the Court focused on the final sentence of 38 C.F.R. § 3.156(a) which states that, "[n]ew and material evidence can be neither cumulative nor redundant...and must raise a reasonable possibility of substantiating the claim." The Court interprets the language of § 3.156(a) as creating a low threshold and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In this regard, the Court refers to the VA's stated position in its rulemaking concerning the most recent revision to § 3.156(a), noting the VA did not mean to define "material" in the restrictive sense, i.e., "existing evidence that relates specifically to the reason why the claim was last denied," but rather, the intended meaning was "existing evidence that...relates to an unestablished fact necessary to substantiate the claim." In this instance, the Board notes that the new evidence obtained pertains to the 38 C.F.R. § 3.303 requirements that the Veteran have a current disability and that it be etiologically related to his active duty service or secondarily to a disorder related to his active duty service. Specifically, that new evidence supports a new theory of entitlement for service connection for a sleep disorder, to include as secondary to his service-connected PTSD, which was not addressed at the time of the last final decision. Bingham v. Principi, 421 F.3d 1346 (Fed. Cir. 2005); Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) Mansfield, 21 Vet. App. 545 (2008); Roebuck v. Nicholson 20 Vet. App. 307, 312-13 (2006). As such this evidence is both new and material under the Court's recent interpretation of § 3.156(a). Therefore, as noted above, the Board finds that evidence obtained, since the most recent final denial in August 2006, is both new and material evidence because the evidence was not previously of record and it addresses an unestablished fact necessary to substantiate the Veteran's claim and the claim must therefore be reopened. Therefore, presuming the credibility of the evidence submitted, the evidence discussed above is considered new and material. See Justus, supra. After careful consideration, the Board concludes that this newly received evidence relates to an unestablished fact necessary to substantiate the Veteran's claim; thus, it is material. As such, the Board concludes that the Veteran's request to reopen the previously disallowed claim of entitlement to service connection for sleep apnea secondary to service-connected PTSD should be granted. 38 C.F.R. § 3.156(a) (2010). ORDER New and material evidence having been received, the claim of entitlement to service connection for a sleep disorder claimed as sleep apnea, to include as secondary to service-connected PTSD, is reopened, and to this extent the claim is granted. REMAND While the Board regrets further delay, after review of the record, the Board finds that a remand for further development is warranted with respect to the issue of entitlement to service connection for sleep apnea to include as secondary to service-connected PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). As a general matter, service connection for a disability on the basis of the merits of such a claim 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. Cuevas v. Principi, 3 Vet. App. 542 (1992). Additionally, VA regulations provide that a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2010). VA will not concede, however, that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Having determined that the Veteran's claim should be reopened, the Board notes that the Veteran was provided a VA examination in May 2008 to address whether the Veteran's sleep apnea was caused by or aggravated by his service-connected PTSD. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. 38 C.F.R. § 3.159(c) (4); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, the Veteran was afforded a VA examination; however the Board finds that the examination provided was not adequate. In this regard the Board notes that the May 2008 examiner opined, after careful review of the record, an interview, and a review of the relevant psychology literature, that the Veteran had multiple sleep disturbances including nightmares, night sweats, and sleep apnea, some of which are related to his service-connected PTSD. The examiner noted that the Veteran's night sweats and nightmares are most likely caused by or the result of exposure to military combat trauma, and are therefore related to the Veteran's PTSD. The examiner further noted that the Veteran's obstructive sleep apnea is however a medical diagnosis for a sleep related breathing disorder and is not a symptom of PTSD. As such the examiner noted that while sleep apnea appeared following the Veteran's combat trauma exposure along with the Veteran's other sleep disturbances, the psychological literature did not allow the examiner to explicitly identify a causal link to the Veteran's PTSD without resorting to speculation outside the boundaries of the examiner's professional training. The examiner finally noted that a definitive opinion could be provided by a medical professional who after reviewing the Veteran's polysomnography data could differentiate the Veteran's sleep apnea data from those of a nocturnal panic attack which could possibly be secondary to the Veteran's PTSD. The Court has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board finds that the examiner's opinion is inadequate not simply because it is speculative in nature but because it also suggests that a differently qualified medical examiner could provide a definitive opinion. Additionally the Board notes the December 2009 private treatment report that noted that depression could disturb sleep and contribute to daytime sleepiness and fatigue and the June 2007 letter from a private clinic director that noted that the Veteran was being treated for PTSD and that one of the persistent symptoms of PTSD involved difficulty falling or staying asleep and disturbing dreams which could contribute to somatic complaints. The Board notes that none of the opinions address the question of whether the Veteran has a sleep disorder to include sleep apnea that is aggravated by the Veteran's PTSD. Finally, the Board notes that the examiner did not consider lay statement submitted in January 2011 from the Veteran's mother and spouse who collectively recall the Veteran's heavy snoring both while on active duty and after his release. Therefore in compliance with Barr, the Board finds that it is necessary to remand the issue for a new examination that addresses whether the Veteran's sleep apnea or any other diagnosed sleep disorder is related to his active duty service or his service-connected PTSD. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination with an appropriately qualified examiner to determine whether the Veteran's sleep apnea is related to his active duty service to include as secondary to his service-connected PTSD. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should address whether or not the Veteran's sleep apnea is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to his military service. In responding to this inquiry, the examiner should comment on the significance, if any, of the lay statements of record indicating that the Veteran began snoring heavily in service. The examiner should also address whether the Veteran's sleep apnea is proximately due to, or alternatively, aggravated by the Veteran's service-connected PTSD. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner should also indicate from a review of the Veteran's polysomnography data whether it is possible to differentiate the Veteran's sleep apnea data from those of a nocturnal panic attack due at least as likely as not to service-connected PTSD. The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. Please send the claims folder to the examiner for review in conjunction with the examination. 2. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs