Citation Nr: 1300372 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 06-27 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for coronary artery disease (CAD). 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for bilateral lower extremity peripheral neuropathy. 4. Entitlement to service connection for a variously diagnosed psychiatric disorder, including posttraumatic stress disorder (PTSD). 5. Whether new and material evidence has been received to reopen a claim of service connection for a sleep disorder. 6. Whether new and material evidence has been received to reopen a claim of service connection for right eye defective vision. 7. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) for the period prior to March 21, 2009. ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1970 to January 1972 and from November 1990 to June 1991 (and also had National Guard service). These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in November 2005 (which granted service connection for hypertension, rated 10 percent, effective August 20, 2003; denied service connection for a back disorder, hyperlipidemia, diabetes mellitus, CAD, bilateral lower extremity peripheral neuropathy, and a sleep disorder; and declined to reopen claims of service connection for PTSD and right eye decreased vision) and in May 2006 (which denied TDIU). Notably, although the claims of service connection for a sleep disorder and decreased right eye vision were not adjudicated by the RO as claims to reopen, service connection for these disabilities was previously denied in an unappealed July 1997 rating decision (sleeplessness and blurry vision due to undiagnosed illness). The issues have been characterized to acknowledge the finality of the prior RO decision. A June 2011 Board decision denied service connection for a back disability and hyperlipidemia, an increased rating for hypertension, and an effective date earlier than August 20, 2003, for the award of service connection for hypertension. That Board decision also reopened the matter of service connection for PTSD and remanded for additional development and de novo review the matter of service connection for a variously diagnosed psychiatric disorder (to include PTSD) and the remaining issues, listed above. As noted in the June 2011 Board remand, the February 2010 rating decision awarded a 100 percent rating for cerebrovascular accident (CVA) effective from March 21, 2009; however, inasmuch as the Veteran's claim for TDIU was received in December 2005, TDIU could be granted for the period prior to the award of the 100 percent schedular rating. [Notably, a review of the record found that an unappealed July 1997 rating decision, in pertinent part, denied service connection for memory loss. The claim of service connection for a cognitive disorder (a new psychiatric diagnosis) arises from the November 2005 rating decision on appeal which declined to reopen the claim of service connection for PTSD and application of the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of the record. The Court also held that where there is a final agency decision denying a claim on a particular diagnosis and subsequently a new and different diagnosis is submitted for VA's consideration (even one producing the same symptoms in the same anatomic system), the later diagnosis must be considered factually distinct from the first and must be considered to relate to a separate claim. See id. at 8 (distinguishing Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008)). Here, because the prior claim was for memory loss and the current diagnosis is cognitive disorder (which encompasses the symptom of memory loss), a new decision on the merits is required.] As was noted in the June 2011 Board decision and remand, attorney Joseph A. Florio had been listed as the Veteran's representative. In correspondence dated in August 2009, Mr. Florio notified VA that the Veteran had dismissed him as his attorney. A September 2009 letter notified the Veteran that VA had no record that he had appointed an alternate representative, and offered him the opportunity to do so. He has not responded, and is therefore considered to be appearing pro se. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD in accordance with DSM-IV based on a corroborated stressor event in service. 2. It is reasonably shown that the Veteran's cognitive disorder was caused by his stroke (cerebral vascular accident (CVA)). 3. A final July 1997 rating decision denied the Veteran service connection for sleeplessness due to an undiagnosed illness finding that it was the result of a known clinical diagnosis of PTSD. 4. Evidence received since the July 1997 rating decision tends to show that the Veteran's now service-connected cognitive disorder is an etiological factor in his development of a sleep disability; relates to the unestablished fact necessary to substantiate the claim of service connection for a sleep disability, and raises a reasonable possibility of substantiating such claim. 5. The Veteran's sleep disorder is shown to be a symptom of his now service connected cognitive disorder. 6. In June 2011, the Veteran was asked to provide identifying information and the releases needed to secure pertinent outstanding evidence necessary to adjudicate his claims of service connection for diabetes mellitus, CAD, and bilateral lower extremity peripheral neuropathy; whether new and material evidence has been received to reopen the claim of service connection for decreased right eye vision; and entitlement to a TDIU rating; more than a year has lapsed since that request; he has not responded. CONCLUSIONS OF LAW 1 Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2012). 2. Service connection for a cognitive disorder is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2012). 3. New and material evidence has been received, and the claim of service connection for a sleep disorder may be reopened. 38 U.S.C.A. § 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 4. On de novo review, secondary service connection for a sleep disorder is warranted. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). 5. By failing to submit requested identifying information and releases for critical evidence needed to properly adjudicate his claims (of service connection for diabetes mellitus, CAD and bilateral lower extremity peripheral neuropathy; whether new and material evidence has been received to reopen a claim of service connection for defective right eye vision; and entitlement to a TDIU rating), the Veteran has abandoned such claims, and his appeal in these matters must also be considered abandoned. 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 2002); 38 C.F.R. § 3.158(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the claims of service connection for a variously diagnosed psychiatric disorder (other than PTSD) and whether new and material evidence has been received to reopen a claim of service connection for a sleep disorder, inasmuch as this decision grants service connection for a cognitive disorder and for a sleep disorder on de novo review, it represents a complete grant of the benefits sought on appeal. There is no reason to belabor the impact of the VCAA on these matters; any error in notice or duty to assist omission is harmless. Regarding the remaining claims, the Veteran was advised of VA's duties to notify and assist in the development of these claims prior to their initial adjudication. Specifically, letters in December 2004 (regarding service connection for PTSD, CAD, diabetes mellitus, right eye defective vision, and bilateral lower extremity peripheral neuropathy) and February 2006 (for TDIU) explained the evidence necessary to substantiate the claims, the evidence VA is responsible for providing, and the evidence he is responsible for providing. A June 2011 letter also notified him of the evidence necessary to substantiate his claims of secondary service connection for peripheral neuropathy (i.e., evidence of a connection between the claimed disability and a service-connected disability). The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs), postservice VA and some private treatment records, and records from the Social Security Administration are associated with his claims file. The RO arranged for VA PTSD examinations in October 2009 and (pursuant to the Board's remand) in July 2011. The Board finds that these examinations, cumulatively, are adequate for rating purposes as to the psychiatric disability/sleeplessness claims. The July 2011 examiner considered the reported history of the Veteran, including in the context of amended regulations pertaining to claims of service connection for PTSD (which liberalized, in certain circumstances, the evidentiary standard for establishing the required in-service stressor) and conducted a thorough examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The RO's actions have substantially complied with the June 2011 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the remaining claims, as explained below, further pertinent (and perhaps critical) evidence is outstanding. However, such evidence cannot be obtained without the Veteran's cooperation (by providing identifying information and authorization for release of records). In June 2011, the RO asked the Veteran to provide the information and releases. He has not responded, and further development cannot proceed without his cooperation. The Board recognizes that the Veteran himself may be unable to provide the information sought due to the cognitive impairment associated with his stroke; however, because such information is critical to a proper adjudication of his claims, proper adjudication of the claims cannot be completed without the information. Given the circumstances, VA has met its assistance obligations. Legal Criteria, Factual Background and Analysis Initially, the Board notes all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Psychiatric Disorder - Service Connection The Veteran claims service connection for PTSD he alleges resulted from traumatic experiences during his active duty service in Saudi Arabia. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held, in essence, that the matter of service connection for psychiatric disability other than PTSD is part and parcel of a service connection for PTSD claim (and is before the Board). Here, PTSD has been diagnosed; however, the record also includes diagnoses of psychiatric disability other than PTSD (cognitive disorder, depression, pain disorder, major depressive disorder, and adjustment disorder) which must be considered. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). On July 13, 2010, VA published a final rule that amended 38 C.F.R. § 3.304(f) to liberalize the evidentiary standard for establishing a required in-service stressor where a claimed stressor is related to fear of hostile military or terrorist activity. "Fear of hostile military or terrorist activity" is defined as being where "a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010) and 75 Fed. Reg. 41092 (July 15, 2010) (codified in 38 C.F.R. § 3.304(f)(3)). In the absence of clear and convincing evidence to the contrary, the Veteran's lay testimony alone may establish the occurrence of such a stressor if the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. Id. Factual Background The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis relating to PTSD (a November 1970 STR notes the Veteran was to be sent to Vietnam and had "numerous family problems" and includes an impression of anxiety reaction). His DD Form-214 and his service personnel records show that his principal duties were artillery repair and wheeled vehicle repair. These records also show that he was ordered to active duty in support of Operation Desert Shield/Storm and served in the Southwest Asia theater of operations during the Persian Gulf War. A May 1994 Persian Gulf Registry examination for mental disorders report and an August 1994 report of PTSD psychiatric evaluation note that the Veteran reported traumatic experiences while serving in Saudi Arabia. Specifically, he recalled scuds flying overhead and one hitting about a mile away from the camp where he was staying. The PTSD psychiatric evaluation report further notes his recollection that about 40 people near where he worked (about a mile away) were killed during one of these attacks. Both examination reports included a diagnosis of PTSD; however, neither report specifically attributed the diagnosis to an alleged traumatic event in Saudi Arabia. Records from the Social Security Administration include a January 2005 Clinical Interview/Mental Status Examination which notes that the Veteran reported that "his problems started when he came back from Desert Storm" and thought "he is depressed because he used to work every day and now, with the illness, he cannot do what he used to do." After examination of the Veteran, the examiner noted that the Veteran had "a few signs of PTSD, and some depressive symptoms related to illness and loss of work." The diagnostic impression was adjustment disorder with depressed mood and alcohol abuse, in partial remission. These records also include an August 2006 psychology note (initial evaluation related to chronic pain) which shows an assessment of pain disorder associated with a general medical condition (low back and probably osteoarthritis) and Major Depressive Disorder. An October 2007 VA psychiatry intake evaluation report notes that the Veteran reported "doing ok until he had a heart attack in 2004 which precluded his continued employment. He became more depressed because he had previously been a good provider and was no longer able to do so." Upon futher questioning, the Veteran "acknowledged that he actually has experienced problems since he returned from DS [Desert Storm] after which he became more irritable, began withdrawing more, tended to work by himself, be impatient." He also reported experiencing "recurring NM [nightmares] about DS." The diagnostic impression included PTSD. In February 2009 and in June 2010, the RO made a Formal Finding that there was a lack of the information needed to verify stressors alleged in connection with the PTSD claim. A March 2009 Statement of Attending Physician includes the notation that "since his stroke [the Veteran] cannot ... remember too many things." On VA PTSD examination in October 2009, the examiner noted the Veteran experiences hallucinations related to CNS (central nervous system) damage from CVA and memory impairment after CVA. The examiner further noted that the Veteran has "difficulty concentrating, difficulty sleeping, irritability, anhedonia, detachment, [and] sense of a foreshortened future" related to CVA. The diagnosis included a finding that the Veteran was not mentally competent due to post-CVA neurological and cognitive impairment. The examiner determined that the Veteran "meets the DSM-IV criteria for a diagnosis of PTSD" but that the primary stressors related to PTSD are "unknown." The examiner explained that "the 'anxiety reaction' the Veteran was treated for in 1970 is not related to or the onset of the current disability." The examiner also explained that (because she was unable to find treatment records for any mental health treatment in SWA) she could not state without resort to speculation whether any symptoms during the Veterna's active duty service in SWA (Southwest Asia) represented the onset of his current psychiatric disability. A February 2010 rating decision granted service connection for cerebral vascular accident with left sided hemiplegia as secondary to service-connected hypertension, rated 100 percent (with loss of use of one hand and one foot) from March 21, 2009, the date of the Veteran's emergency room visit for CVA. On July 2011 VA PTSD examination, the examiner reviewed the Veteran's claims file and, based on the current examination and clinical findings, concluded that the Veteran did not now have and had never been diagnosed with PTSD (he did not meet the full criteria for PTSD). His current diagnoses were depression and cognitive disorder from stroke and it was not possible to differentiate what symptoms were attributed to each diagnosis because the symptoms overlapped. The examiner noted that the Veteran was "not able to cite to any specific trauma from the military but his son stated that the Veteran was in Saudi Arabia during Oper[ation] Desert Storm and saw SCUD missiles land close to him. One SCUD missile landed and killed 40 people and [Veteran] witnessed this. However [Veteran] does not remember much due to his stroke 2 years ago. He does not describe many symptoms of PTSD from military other than some sleep problems, irritibility and jumpiness at loud noises. His current diagnoses are Cognitive problems from stroke and Depression NOS [not otherwise specified] which are not related to military service." Analysis With respect to PTSD, a threshold requirement for the granting of service connection is evidence of a current disability. In other words, in the absence of evidence of a current disability, in this matter a diagnosis of PTSD according to the DSM-IV, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court held that the requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran's STRs are silent for a diagnosis of PTSD. Although his allegation of witnessing SCUD missile attacks is consistent with his active duty service in Saudi Arabia and post-service clinical records include a diagnosis of PTSD, the diagnosis of PTSD has not been related to a specific event or events in service (and the symptoms required for a diagnosis of PTSD in accordance with DSM-IV were not identified, as is also required under 38 C.F.R. § 4.125). Although an October 2009 VA PTSD examiner opined that the Veteran "meets the DSM-IV criteria for a diagnosis of PTSD," that examiner also noted that the primary stressor for such diagnosis was "unknown". Notably, that examination also predated the July 13, 2010 effective date of the liberalizing regulation for establishing the occurrence of a stressor event in service. Hence, the October 2009 VA examination is inadequate for rating purposes. The opinion of the July 2011 VA PTSD examiner is both probative and persuasive. The examiner explained the rationale for the opinion with reference to the Veteran's contentions and citing to evidence in the record (to include a detailed discussion as to whether each DSM-IV criterion (for a diagnosis of PTSD) was met). This opinion is competent evidence in the matter at hand; and because there is no similarly detailed opinion by a medical professional familiar with the record to the contrary, it is persuasive. The Board has considered the Veteran's assertions that he has PTSD. He is competent to testify about psychiatric symptoms he has experienced; however, the diagnosis of PTSD is a complex medical question that requires medical expertise. Whether or not the symptoms he observed form the constellation of symptoms needed to support a PTSD diagnosis (and whether or not they can be attributed to a stressor event in service) are questions beyond the scope of lay observation. The Veteran does not cite to any supporting medical literature/opinion (or to supporting clinical data). His self-diagnosis of PTSD has no probative value. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran now has (or at any time during the appeal period had) a diagnosis of PTSD in accordance with DSM-IV. Consequently, there is no valid claim of service connection for PTSD. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, on this aspect of the claim the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). With respect to the remaining psychiatric diagnoses, they were not manifested in service or for many years after service. See the October 2009 VA examiner's opinion that "the 'anxiety reaction' treated in 1970 does not represent the onset of (and is unrelated to) the current psychiatric disability." Therefore, service connection for a psychiatric disability on the basis that it became manifest in service, and persisted, is not warranted. What remains for consideration is whether the psychiatric diagnoses noted years after service may be related to the Veteran's service or a service connected disability. It is well-established in the record that the Veteran has a variously diagnosed psychiatric disability. As is also noted above, he has established service connection for CVA. October 2009 and July 2011 VA examiners (who reviewed the entire record, conducted thorough psychiatric evaluations, and provided a thorough explanation of rationale) have related the Veteran's cognitive disorder to his CVA. [Notably, the July 2011 examiner has stated that it is not possible to differentiate what symptoms are attributed to the Veteran's cognitive disorder and which are attributed to his depression because the symptoms overlapped. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998).] The Board finds no reason to question the opinions of the October 2009 and July 2011 VA examiners as to the cause of the Veteran's cognitive disorder, as they have the requisite expertise to offer such opinion. Moreover, their opinions are supported by the March 2009 Statement of Attending Physician and there is no competent evidence to the contrary. All of the requirements for establishing secondary service connection for the psychiatric entity of a cognitive disorder are met; service connection for a cognitive disorder as secondary to the service-connected CVA is warranted. Sleep Disorder - New and Material Evidence Generally, a rating decision denying a claim for VA benefits that is not appealed is final based on the evidence of record at the time of the decision, and may not be reopened or allowed based on such evidence. 38 U.S.C.A. § 7105. However, if new and material evidence is presented or secured with respect to the claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). 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 cannot be cumulative or redundant of the evidence already of record when the last final denial of the claim was made, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening a claim the credibility of newly received evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). An unappealed July 1997 rating decision denied the Veteran service connection for sleeplessness as due to an undiagnosed illness finding that such symptom was attributable to a known psychiatric diagnosis. [Notably, the claim of sleeplessness was previously denied in an August 1995 rating decision; however, that decision did not consider the Veteran's Persian Gulf Registry Physical Examination, including a May 1994 evaluation for mental disorders and an August 1994 Initial Psychiatric Evaluation for PTSD. When such evidence was received, the Veteran's claim was readjudicated de novo in July 1997.] He did not appeal that decision and it became final. 38 U.S.C.A. § 7105. Evidence of record at the time of the July 1997 rating decision included STRs, which were silent for complaints of or treatment for sleeplessness, and a May 1994 evaluation for mental disorders and an August 1994 Initial Psychiatric Evaluation for PTSD (in connection with the Veteran's Persian Gulf Registry Physical Examination), which noted his complaints of difficulty sleeping since returning from the Persian Gulf. Evidence received since the July 1997 rating decision includes October 2009 and July 2011 VA examination reports, which attribute the Veteran's sleep disorder to his (now service-connected) cognitive disorder. As the Veteran's claim of service connection for sleeplessness due to an undiagnosed illness was previously denied based on a finding that such was the result of a known clinical diagnosis of PTSD (service connection for which has been denied), for additional evidence received to be new and material, it must relate to this unestablished fact, i.e., it must tend to show that a sleep disorder was caused or aggravated by service or is secondary to a service-connected disability. The new evidence includes medical opinions to the effect that the Veteran's current sleep disability is a symptom of his (now service-connected) cognitive disorder. It relates to the unestablished fact necessary to substantiate the claim of service connection for a sleep disorder, and raises a reasonable possibility of substantiating such claim. Hence, the additional evidence is both new and material, and the claim of service connection for a sleep disorder may be reopened. De Novo Review As the claim is reopened, the analysis proceeds to de novo review of the claim for [secondary] service connection. The Board observes that the Veteran is not prejudiced by the Board's proceeding to de novo review upon reopening (without returning the matter to the RO for their initial de novo review) because the benefit sought is being granted. The competent medical evidence of record prior to the Veteran's CVA in March 2009 noted the Veteran's complaints of difficulty sleeping; however, the October 2009 and July 2011 VA examiners related the Veteran's sleep difficulty to his cognitive disorder (which is secondary to his service-connected CVA). The October 2009 examiner noted that the Veteran has difficulty sleeping related to CVA. Similarly, the July 2011 examiner noted that the Veteran's psychiatric diagnosis (of depression and cognitive disorder from stroke) is productive of symptoms of chronic sleep impairment. The examiners expressed familiarity with the factual record, cited to pertinent clinical data, and provided a detailed explanation of rationale. As these opinions are by medical professionals competent to provide them, they are probative evidence in the matter at hand, and because there is no opinion to the contrary, they are persuasive. In light of the foregoing, the Board concludes that all the factual and legal requirements for establishing secondary service connection for a sleep disability are met, and that service connection for a sleep disability/sleeplessness as secondary to (a symptom of) the now service-connected cognitive disorder is warranted. Diabetes Mellitus, CAD, Bilateral Lower Extremity Peripheral Neuropathy, Right Eye Defective Vision, and TDIU With respect to the claims of service connection for diabetes mellitus, CAD, and bilateral lower extremity peripheral neuropathy; whether new and material evidence has been received to reopen a claim of service connection for defective right eye vision; and for a TDIU rating prior to March 21, 2009; VA is unable to properly proceed with adjudication of these matters because the Veteran has not provided identifying information and releases for VA to secure private records pertaining to the diagnoses and treatment of the disabilities and their impact on his employability (prior to his stroke). [Although the record was adequate to address the claims of service connection for a psychiatric disorder and for sleeplessness.] A governing regulation provides that where evidence requested in connection with an original claim or a claim for increase is not furnished within 1 year after the date of the request, the claim will [emphasis added] be considered abandoned. 38 C.F.R. § 3.158(a). The Board's June 2011 remand noted that any pertinent clinical records after the Veteran's separation from active duty service in June 1991 and prior to 1994 must be obtained and noted a gap in clinical evidence from 1996 to 2003. In June 2011 (pursuant to the Board remand), the Appeals Management Center (AMC) sent the Veteran a letter asking him to complete and return enclosed VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) for each non-VA provider since his discharge from active duty service in June 1991, to specifically include from June 1991 to 1994, from 1996 to 2003, and from April 2009 to the present so that VA could secure records of his private treatment for the disabilities at issue. The letter was mailed to his current address, and was not returned as undelivered. He did not respond. More than a year has passed since the June 2011 request. The critical facts at this stage are clear: The Veteran has not provided the information and releases necessary for VA to secure critical evidence pertaining to his claims seeking service connection for diabetes mellitus, CAD, and bilateral lower extremity peripheral neuropathy; to reopen a claim of service connection for defective right eye vision; and for a TDIU rating prior to March 21, 2009. Although his now service-connected cognitive disorder may render him incapable of responding to the requests, the record suggests that he has fiduciaries (his son) acting on his behalf (and capable of complying with the request). Regardless, the Board is presented with a less than complete evidentiary record. These remaining claims cannot be properly addressed without the private records sought, and proper merits adjudication is simply not possible. The regulation governing in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned) (emphasis added). Notably, more recently the Court has held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220 (2012). Hence, the Board has no recourse but to conclude that the Veteran has abandoned the remaining claims. See Hyson v. Brown, 5 Vet. App. 262 (1993). As the claims of service connection for diabetes mellitus, CAD, and bilateral lower extremity peripheral neuropathy; to reopen a claim of service connection for defective right eye vision; and for a TDIU rating prior to March 21, 2009 are abandoned, there is no allegation of error in fact or law for appellate consideration in the matters. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. ORDER Service connection for PTSD is denied. Secondary service connection for a cognitive disorder is granted. The appeal to reopen a claim of service connection for sleep disorder is granted; and on de novo review service connection for sleeplessness as a symptom of the Veteran's cognitive disorder is granted. The appeals seeking service connection for diabetes mellitus, CAD, and bilateral lower extremity peripheral neuropathy; to reopen a claim of service connection for defective right eye vision; and for a TDIU rating prior to March 21, 2009 are dismissed. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs