Citation Nr: 1315760 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-39 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bone loss of the mandible. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for sleep apnea and, if so, whether service connection is warranted. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral carpal tunnel syndrome and, if so, whether service connection is warranted. 4. Entitlement to service connection for dental treatment purposes. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to March 1973 and from February 1976 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a rating decision issued in March 2009, the RO denied service connection for bone loss and declined to reopen claims for service connection for sleep apnea and bilateral carpal tunnel syndrome. In July 2010, the RO issued a decision denying entitlement to TDIU. The Veteran timely perfected appeals of both rating actions. In January 2013, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and reflects that the Veteran was afforded an extensive opportunity to present hearing testimony, evidence, and argument on the issues on appeal. Although additional evidence was added to the record after the issuance of an August 2012 supplemental SOC, the Veteran waived agency of original jurisdiction (AOJ) consideration on the record at the January 2013 hearing. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. The rating decision issued by the RO in March 2009 included a denial of a claim for service connection for posttraumatic stress disorder (PTSD). However, the RO subsequently issued a July 2012 rating decision granting service connection for PTSD. As the Veteran has not submitted a notice of disagreement as to the disability rating or effective date assigned for the grant of service connection for PTSD that issue is not before the Board. 38 C.F.R. § 20.201 (2012); Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file does not reveal any additional evidence pertinent to the present appeal. The issues of entitlement to service connection for dental treatment purposes, bilateral carpal tunnel syndrome, and sleep apnea, as well as the issue of entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran does not have bone loss of the mandible as the result of combat, other in-service trauma, or disease such as osteomyelitis. 2. In a final February 2005 rating decision, the RO denied entitlement to service connection for sleep apnea. 3. Evidence added to the record since the February 2005 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for sleep apnea. 4. In a final November 2006 rating decision, the RO determined that new and material evidence sufficient to reopen the Veteran's claim for service connection for bilateral carpal tunnel syndrome had not been received. 5. Evidence added to the record since the November 2006 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for sleep apnea. CONCLUSIONS OF LAW 1. The criteria for service connection of bone loss of the mandible are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.381 (2012). 2. The February 2005 rating decision that denied the Veteran's claim of entitlement to service connection for sleep apnea is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004) [(2012)]. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. The November 2006 rating decision in which the RO determined that new and material evidence sufficient to reopen the Veteran's claim for service connection for bilateral carpal tunnel syndrome had not been received is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006) [(2012)]. 5. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral carpal tunnel syndrome. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As the Board's decisions to reopen the Veteran's claims of entitlement to service connection for bilateral carpal tunnel syndrome and sleep apnea are completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations regarding these two (2) specific issues. However, consideration of the merits of these issues is deferred pending additional development consistent with the VCAA. In regard to the claim for service connection for bone loss of the mandible, the VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a July 2008 letter, sent prior to the initial unfavorable rating decision, advised the Veteran of the evidence and information necessary to substantiate a claim for service connection as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment and personnel records, as well as VA and private treatment records have been obtained and considered. Further, the Veteran has not identified any additional, outstanding records that have not been requested or obtained. The duty to assist also provides that VA will afford a claimant a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c) (4). A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159(c) (4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Veteran has not been provided with a VA medical examination and/or opinion regarding his claim for service connection for bone loss of the mandible. However, the Board finds that an examination is not necessary in the instant case. Specifically, as will be discussed below, there is no credible evidence that the Veteran experienced a qualifying in-service injury. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim. As indicated previously, the Veteran testified before the undersigned VLJ in January 2013. A Veterans Law Judge who conducts a hearing must fulfill the following two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. 3.103(c) (2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The representative and the undersigned asked questions to ascertain information to substantiate the Veteran's service connection claim and draw out relevant evidence. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c) (2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim for service connection and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c) (2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service Connection for Bone Loss of the Mandible The Veteran asserts that he should be compensated for loss of a portion of his mandible bone since such bone loss manifested in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Inasmuch as the Veteran does not have a disease recognized as chronic under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are inapplicable. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in § 17.161 of this chapter, but not for purposes of compensation. See 38 C.F.R. § 3.381(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has specifically claimed entitlement to service connection for "bone loss and gum disease;" he has clarified that "bone loss" refers to his loss of the portion of the mandible bone. He has contended that he experienced bone loss as the result of "infection" (see October 2009 notice of disagreement) as well as physical trauma. Specifically, per his January 2013 hearing testimony, the Veteran has contended that while serving at Fort Leavenworth approximately between 1976 and 1978, he was "kicked in [his] face" and, as a result, health care providers "had to start pushing out some of [his] tooth" and "capped some of [his] tooth." Service treatment records do reflect that the Veteran underwent dental treatment during service, to include having teeth extracted, receiving crowns, and undergoing periodontal treatment. However, service treatment records do not reflect that the Veteran sustained any dental trauma. During his first term of active duty service, in August 1971, the Veteran was noted to have a laceration on his lip and the right side of his chin, over his mandible; he was treated with stitches. In October 1972, he was seen for a fall and reported some pain on the side of his head "where chewing." However, the service records do not reflect that he incurred any injury to his mandible or teeth and his first separation examination, dated March 1973, reflects no dental defects and no loss of any teeth. During his second term of active duty service, the Veteran was seen at the Fort Leavenworth clinic on October 5, 1976 after reportedly being kicked in the face during a fight. The treatment note reflects periorbital injury, but x-ray revealed no fracture; he was diagnosed with contusion and abrasion to the right periorbital area. He was seen for follow up on October 6, 8, and 12, 1976. Each note discusses injury to the right eye; there is no mention of any dental or mandible injury. The October 12, 1976 treatment note specifically states that the Veteran "has no complaints except the vision in his right eye." As late as November 1985, periodic medical examination reports reflect no dental defects or loss of teeth. However, beginning in 1989, his service dental records reflect treatment for symptoms of periodontal disease. While the Veteran may have undergone dental treatment in service, to include extractions and periodontal treatment, there is no evidence such treatment was provided to treat traumatic injury. Rather, the evidence reflects in-service treatment for periodontal disease. An April 2011 letter submitted by a private dentist details all of the Veteran's in-service treatments and discusses them as treatments for periodontal disease. Further, despite the Veteran's contention that he experienced some bone loss due to "infection," neither the treatment notes nor the letter from the private physician reflect any in-service osteomyelitis. See McNeely v. Principi, 3 Vet. App. 357, 363 (1992) (osteomyelitis is defined as an infectious inflammatory disease of bone marked by local death and separation of tissue). The Veteran also has not demonstrated that he possesses any specialized medical training or expertise that would render him competent to diagnose the clinical cause of his dental conditions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition, the claimant is not competent to provide evidence as to more complex medical questions). In regard to the Veteran's in-service facial injury that he contends resulted in dental trauma requiring in-service treatment, the Board notes that a layperson such as the Veteran is considered competent to report the circumstances of his service as well as onset and continuity of symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, in adjudicating this claim, the Board must assess not only the competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. Although first, the Board must determine whether the evidence comes from a "competent" source, then it must determine if the evidence is worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). As a third step, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. In determining probative value, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F. 3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In this case, the Veteran initially attributed his loss of mandible bone to "infection," but later contended it resulted from in-service trauma to the face. Although the Veteran is competent to report the circumstances of his service and his symptomatology, the Board finds his statements regarding his in-service experiences to be not credible due to internal inconsistency and inconsistency with the other evidence of record. See Caluza, 7 Vet. App. at 511-512 (the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party, but his personal interest may affect the credibility of the evidence. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, the evidence plainly shows that the Veteran was fully evaluated after the in-service trauma to his face and that no clinician found, and he did not report at the time (and, in fact, denied), any injury other than to his right periorbital region. In regard to the April 2011 private dentist's observation as to the "destructive force" of "occlusal trauma," the Board notes that the dentist's letter reflects an opinion based on analysis of the record as well as reliance on the Veteran's contentions. In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court, citing its earlier decisions in Swann v. Brown, 5 Vet. App. 229 (1993) and Reonal v. Brown, 5 Vet. App. 458 (1993), reaffirmed that, in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion. Id. at 179. In Kowalski, the Court declared, however, that the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history provided by the Veteran, and instead must evaluate the credibility and weight of the history upon which the opinion is predicated. Id. Here, as noted, the Board has found the Veteran's history, specifically his contention that he experienced an in-service traumatic dental injury, not credible due to factual inconsistencies. See Coburn v. Nicholson, 19 Vet. App. 427 (2006). Therefore, as the April 2011 letter is based on an inaccurate factual premise, the Board accords no probative weight to the private dentist's opinion. The Board also observes the private dentist's general statements that "periodontal disease is linked to cardiovascular diseases" and "stress plays a role in cardiovascular health" and notes that the Veteran is service-connected for hypertension, stroke, and PTSD. However, the dentist's statements are not specific to the Veteran's clinical picture and fail to disclose if any of the referenced conditions are causative or aggravating; he also observes that "much more" research is needed. Although the statements do not even arise to the level of an etiological opinion, to the extent they may be loosely construed as such, the Board finds that they are too general and inconclusive to be characterized as evidentiary support. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). Regardless, the Board again notes that while service connection may be established for treatment purposes, the regulations listed above clearly prohibit service connection for purposes of compensation. "Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities." 38 C.F.R. § 3.381 (b). The Board acknowledges that the Veteran has some loss of bone, but the law provides that only "bone loss due to trauma or disease such as osteomyelitis" is compensable; loss of alveolar process as a result of periodontal disease is not considered disabling. 38 C.F.R. § 4.150, Note to Diagnostic Code 9913. Again, there is no evidence of osteomyelitis during service and the record reflects that the Veteran's dental problems are not due to any in-service trauma or combat. See generally, VAOPGCPREC 5-97; 38 C.F.R. 4.150, Diagnostic Codes 9913-9916. Additionally, there is no evidence that the Veteran was a prisoner of war. See 38 C.F.R. § 3.381(b). As his claimed condition is not recognized by the applicable regulations as a disability for which VA compensation may be granted, the Veteran's claim cannot be granted. See 38 C.F.R. § 3.381 (periodontal disease is not a disability for compensation purposes). In summary, the only dental treatment rendered in service was for the progression of periodontal disease. Service connection for periodontal disease and bone loss that is not from trauma/osteomyelitis for compensation purposes is not legally permitted. As such, his claim for compensation must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). [The Board notes, parenthetically, that, not only is the Veteran's claim of entitlement to service connection for dental treatment purposes remanded below, but he remains able to file claims of entitlement to service connection for other specific dental disabilities.]. New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Additionally, 38 C.F.R. § 3.156(b) provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Sleep Apnea During the January 2013 Board hearing, and in other documents of record, the Veteran has contended that his current sleep apnea had its onset in service. Therefore, he alleges that service connection for such disorder is warranted. The Veteran's claim for service connection for sleep apnea was originally denied in a February 2005 rating decision in which the RO found that there was no evidence that sleep apnea manifested during service or as the result of any of the Veteran's in-service experiences. In June 2008, the Veteran submitted a petition to reopen the claim. At the time of the February 2005 decision, the RO considered the Veteran's service treatment records as well as post-service treatment records. The Veteran was advised by VA of the rating decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for sleep apnea was received until June 2008. Therefore, the February 2005 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004) [(2012)]. The Board further observes that, in consideration of 38 C.F.R. § 3.156(b), no evidence pertaining to the Veteran's claim for service connection for sleep apnea was received prior to the expiration of the appeal period stemming from the February 2005 rating decision. Since the February 2005 rating decision, additional evidence consisting of additional treatment records, lay statements, testimony offered at the January 2013 Board hearing, and the report of a May 2012 VA examination was added to the record. The newly received evidence includes references to, and support of, the Veteran's contention that he experienced symptoms of sleep apnea during, and after, active duty service. The Board concludes that the evidence received since the prior final denial is new in that it was not previously of record. It is material because it relates to unestablished facts necessary to substantiate the Veteran's claim. Specifically, an undated letter submitted to VA in June 2011 and written by a VA physician and sleep center director, reflects the medical opinion that "from a reasonable degree of medical certainty," the Veteran's sleep apnea symptoms "started long before he left military service." Additionally, the Veteran offered competent testimony that he experienced loud snoring and unrestful sleep during his active duty service which was observed by fellow service members as well as his wife prior to his discharge from active service. Although he had previously contended that he experienced symptoms of sleep apnea during service, there was no prior competent medical evidence linking his currently diagnosed sleep apnea to his in-service experiences. The Veteran's hearing testimony, as well as the physician's opinion that was submitted in June 2011, are presumed credible for the purposes of evaluating the application to reopen the claim for service connection for OSA. Fortuck, supra; Justus, supra. Therefore, the Board finds that the new evidence tends to prove previously unestablished facts necessary to substantiate the underlying claim of service connection for OSA. Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim of entitlement to service connection for OSA is reopened. Bilateral Carpal Tunnel Syndrome The Veteran has contended that he developed bilateral carpal tunnel syndrome as the result of his in-service experiences. Specifically, he has contended that his bilateral carpal tunnel syndrome developed as the result of the manual exercise required by his military specialty in food preparation. He has also contended that symptoms of his bilateral carpal tunnel syndrome began to manifest while he was on active duty. Therefore, he alleges that service connection for such disorder is warranted. The Veteran's claim for service connection for bilateral carpal tunnel syndrome was originally denied in a February 2005 rating decision in which the RO found that there was no evidence that bilateral carpal tunnel syndrome had manifested during service or as the result of any of the Veteran's in-service experiences. In May 2005, he submitted an application to reopen his claim of entitlement to service connection. In this regard, the Board observes that, although the Veteran filed a new claim for service connection in May 2005, he did not file a notice of disagreement (NOD) to the February 2005 rating action that would have initiated an appeal as such did not indicate disagreement with the February 2005 rating decision or express a desire for appellate review. See 38 C.F.R. § 20.201 (while special wording is not required, an NOD must be in terms that can be reasonably construed as disagreement with a determination and a desire for appellate review). Thereafter, an April 2005 VA treatment record showing a diagnosis of bilateral carpal tunnel syndrome was received. 38 C.F.R. § 3.156(b). Thereafter, an August 2005 rating decision confirmed and continued the previous denial of service connection for bilateral carpal tunnel syndrome. In May 2006, the Veteran again requested that his claim for service connection for bilateral carpal tunnel syndrome be reopened. Again, while the May 2006 statement was received within one year of the August 2005 rating decision, as the Veteran did not indicate disagreement with such rating decision or express a desire for appellate review, such cannot be construed as an NOD. Furthermore, while additional VA treatment records were associated with the claims file within the one year after the issuance of the August 2005 rating decision, such are not new and material to the Veteran's claim since they contain information, i.e., a current diagnosis of bilateral carpal tunnel syndrome, that was of record at the time of the August 2005 rating decision. As such, in a November 2006 rating decision, the RO determined that the Veteran's claim for service connection for bilateral carpal tunnel syndrome remained denied as the evidence was not new and material. In June 2008, the Veteran submitted a petition to reopen the claim. At the time of the November 2006 decision, the RO considered the Veteran's service treatment records as well as post-service treatment records. At the time of the rating action, the Veteran was advised by VA of the RO's decision as well as of his appellate rights. However, no further communication regarding his claim of entitlement to service connection for bilateral carpal tunnel syndrome was received until June 2008. Therefore, the November 2006 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006) [(2012)]. In consideration of 38 C.F.R. § 3.156(b), no new and material evidence pertaining to the Veteran's claim for service connection for bilateral carpal tunnel syndrome was received prior to the expiration of the appeal period stemming from the November 2006 rating decision. Since the November 2006 rating decision, additional evidence consisting of additional treatment records, lay statements, testimony offered at the January 2013 Board hearing, and the report of a July 2010 VA examination was added to the record. The newly received evidence includes references to, and in support of, the Veteran's contention that he experiences bilateral carpal tunnel syndrome as a result of his active duty service. The Board concludes that the evidence received since the prior final denial is new in that it was not previously of record. It is material because it relates to unestablished facts necessary to substantiate the Veteran's claim. Specifically, the Veteran testified at the January 2013 hearing that a VA physician had informed him that his carpal tunnel syndrome was more likely than not a result of the physical demands of his military duties in food preparation. Additionally, the Veteran offered competent testimony that he first experienced symptoms of carpal tunnel syndrome while he was serving on active duty service. Although he had previously contended that he experienced carpal tunnel as a result of his active duty service, he had not presented prior evidence that carpal tunnel syndrome began during service or that any physician had attributed his carpal tunnel syndrome to his active duty experiences. See Untalan v. Nicholson, 20 Vet. App. 467 (2006) (distinguishing between lay evidence and lay argument); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (claimants are competent to report their symptoms). The Veteran's hearing testimony and lay contentions are presumed credible for the purposes of evaluating the application to reopen the claim for service connection for bilateral carpal tunnel syndrome. Fortuck, supra; Justus, supra. Therefore, the Board finds that the new evidence tends to prove previously unestablished facts necessary to substantiate the underlying claim of service connection. Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim of entitlement to service connection for bilateral carpal tunnel syndrome is reopened. ORDER Service connection for bone loss of the mandible is denied. New and material evidence has been received, and the appeal to reopen a claim of entitlement to service connection for sleep apnea is granted. New and material evidence has been received, and the appeal to reopen a claim of entitlement to service connection for bilateral carpal tunnel syndrome is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As noted in the above decisions, the Veteran has been afforded VA examinations for both sleep apnea and carpal tunnel syndrome. However, the Board finds the examination reports not adequate to resolve the claims on appeal. For that reason, and because additional evidence remains outstanding, the Board finds that corrective action is necessary to assist the Veteran. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VCAA requires VA to assist claimants by gathering all pertinent records of VA treatment and all identified private treatment records. The claims file reflects VA treatment records dating from January 1998. However, the Veteran testified in January 2013 that he received VA treatment "as soon as [he] got out [of] the military" in 1994. Further, the most recent VA treatment notes within the claims file were generated November 2, 2011, more than a year ago. The outstanding VA treatment records should be obtained and incorporated into the claims file before appellate review proceeds. In regard to private treatment notes, the Veteran testified at the Board hearing that he receives general medical care, to specifically include treatment for carpal tunnel syndrome and for his service-connected back disability, from a private primary care physician. He stated that he had been seeing a Dr. Apino, but, approximately one month prior to the hearing, started seeing a Dr. Dennison. The claims file also contains a single record from Falouji Neurology Center and partial treatment records from Tennessee Sports Medicine and Orthopaedics. The most recent note from the orthopedic facility is dated April 2008 and reflects both that the Veteran would be returning for follow-up treatment and that he had been referred to a Dr. Weikert for additional treatment. The AOJ should attempt to obtain these outstanding private medical records on remand. As noted, the Veteran was afforded VA examinations for carpal tunnel syndrome (a July 2010 VA peripheral nerves examination) and for sleep apnea (a May 2012 sleep disorders examination), but the Board finds them to be inadequate to decide the Veteran's claims. Specifically, although the July 2010 examiner assessed the severity of the Veteran's carpal tunnel syndrome, he did not review the claims file, provide a medical opinion, or otherwise discuss when or how that disability began. The May 2012 VA examiner did review the record, discuss the etiology of the Veteran's sleep apnea, and provide an opinion that sleep apnea did not develop as a result of his military service. However, the May 2012 examiner did not address whether or not sleep apnea developed during (italics added for emphasis) military service, as the Veteran has contended. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The AOJ must seek clarifying medical opinions in regard to the Veteran's claims for sleep apnea and carpal tunnel syndrome. The claims file also indicates that additional evidence pertaining to the Veteran's claim for a TDIU may be outstanding. Specifically, the Veteran has reported that he became too disabled to work in 2007 and has not worked since that time. He identified his last employer as the U.S. Department of Defense, Fort Campbell, Kentucky. Although VA inquiries resulted in no evidence of the Veteran's employment, he has contended that VA requested incorrect information from incorrect sources. The claims file reflects that VA contacted individuals in Columbus, Ohio for verification of employment. However, the Board observes that some Human Resource information for Fort Campbell is maintained by the Personnel Advisory Center at Bldg 6901, Desert Storm Avenue in Fort Campbell, Kentucky. Further, as the Veteran has reported working at the commissary at Fort Campbell, it is unclear if all of his employment information would be held by the Department of Defense or if some information may be maintained by AAFES (a joint military activity that staffs some retail and food service positions at Fort Campbell). While the claims file is in remand status, the AOJ must make additional inquiries. The AOJ should also seek clarification from the Veteran as to his employment history: A March 2008 private treatment note states, in contrast to the Veteran's contentions, that he was working full time at the time of treatment. The note also indicates that he may have been pursuing workman's compensation for carpal tunnel syndrome. The AOJ should also ask the Veteran to clarify his employment history and identify any employers for whom he may have worked after 2007. He should be advised that the records of that employment could be relevant to the issues currently under consideration. See Spurgeon v. Brown, 10 Vet. App. 194, 197-98 (1997). In further regard to the claim for a TDIU, the Board notes that a TDIU may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, it is rated at least 60 percent disabling, or, if there are multiple disabilities resulting in a combined rating of at least 70 percent, one of the disabilities is rated at least 40 percent disabling. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). Here, the Veteran has multiple disabilities with a combined rating of 90 percent and he has contended that his service-connected disabilities render him unemployable. However, because he has contended (see April 2012 VA Form 9) that he is basing his claim for a TDIU on the combined effects of his already service-connected disabilities and (italics added for emphasis) the disabling effects of carpal tunnel syndrome - and some VA treatment records reflect that he also attributes some employment impairment to the effects of sleep apnea - the issue of entitlement to a TDIU is inextricably intertwined with the Veteran's appealed claims of service connection. See Moffitt v. Brown, 10 Vet. App. 214, 222 (1997); Parker v. Brown, 7 Vet. App. 116 (1994); Babchak v. Principi, 3 Vet. App. 466, 467 (1992); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Further, the Board observes that the Veteran's June 2008 claim for service connected compensation for "bone loss and gum disease" also constituted a claim of entitlement to service connection for dental treatment purposes. Mays v. Brown, 5 Vet. App. 302 (1993). A March 2009 rating action reflects that the claim for dental treatment was denied. Under 38 C.F.R. § 17.161, outpatient dental treatment may be authorized for beneficiaries defined in 38 U.S.C. 1712(b) and 38 CFR 17.93 to the extent prescribed and in accordance with the applicable classification and provisions set forth in that section. This regulation identifies Veterans who have service-connected disabilities rated at 100% by schedular evaluation or who are entitled to the 100% rate by reason of individual employability as beneficiaries who are entitled to receive outpatient dental treatment. 38 C.F.R. § 17.161 (h). As such, the issue of the Veteran's entitlement to service connection for dental treatment is also is inextricably intertwined with his appealed service connection claims and his claim for a TDIU. See Moffitt, 10 Vet. App. at 222; Parker, 7 Vet. App. 116; Babchak, 3 Vet. App. at 467; Harris, 1 Vet. App. 180. While the TDIU claim and the claim for dental treatment are on remand, the Veteran should be given an opportunity to identify any additional, outstanding treatment records pertaining to his service-connected disabilities. The Board also notes that, while a July 2010 VA examiner expressed an opinion regarding the impact of some of the Veteran's service-connected disabilities on his employability, he has since been granted service connection for PTSD and peripheral neuropathy of the bilateral lower extremities, and no examiner has addressed whether such disabilities jointly render him unemployable. Therefore, such opinion should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain all available VA treatment records dated after November 2, 2011 AND prior to January 15, 1998, to include any retired hardcopy records. NOTE that the Veteran has reported being treated at facilities in VA's Tennessee Valley Healthcare System. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Provide the Veteran with an opportunity to submit any additional private medical evidence that is not of record. Send him the necessary authorizations for the release of any private treatment records not currently on file - the records must include, but are not limited to, records from Dr. Apino, Dr. Dennison, Dr. Weikert, Tennessee Sports Medicine and Orthopaedics, and Falouji Neurology Center. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. Concurrent with the above, request that the Veteran clarify his employment history and specifically identify any employer for whom he worked after 2007. Advise him that records of his employment may be pertinent to his claims. If the Veteran identifies any additional employers, the AOJ should assist him in obtaining any additional pertinent evidence following the current procedures set forth in 38 C.F.R. § 3.159. 4. Contact the Personnel Advisory Center at Bldg 6901, Desert Storm Avenue in Fort Campbell, Kentucky as well as AAFES at Bldg 2610 Indiana Avenue in Fort Campbell to verify the Veteran's employment history. NOTE that the Veteran has specifically reported working at the Fort Campbell commissary as well as generally managing "food" at Fort Campbell. An affirmative or negative response from both of these sources, as well as the reason for the termination of any employment, should be included in his claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 5. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of any carpal tunnel syndrome. The claims file, to include a copy of this Remand, must be made available to, and be reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's bilateral carpal tunnel syndrome began during service or is otherwise causally related to any incident of service, to include his in-service duties regarding food preparation. In offering any opinion, the examiner must consider the full record, to include the Veteran's service treatment records and lay statements regarding alleged in-service symptoms of carpal tunnel syndrome. The rationale for any opinion offered should be provided. 6. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's May 2012 sleep disorders examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the May 2012 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a review of the claims file, to specifically include the Veteran's complete VA and private treatment histories, the 2011 letter from Dr. Salekin, and the Veteran's contentions that he began experiencing symptoms of sleep apnea during active duty, the examiner should offer an opinion as to whether it is at least as likely as not that such disorder began during service or is otherwise causally related to any incident of service. In offering any opinion, the examiner should discuss Dr. Salekin's letter as well as the Veteran's lay statements. Any opinion expressed should be accompanied by a supporting rationale. 7. After completing the foregoing, obtain a VA opinion from an appropriate medical professional as to whether the Veteran's service-connected disabilities render him unemployable. The claims file, to include a copy of this Remand, must be made available to, and be reviewed by, the examiner. Examination of the Veteran is left to the discretion of the medical professional proffering the opinion. After reviewing the record, the medical professional should offer an opinion as to whether the Veteran is unable to secure or follow substantially gainful occupation due solely to his service-connected disabilities, singularly or jointly, in light of his level of education, special training, and previous work experience. In making an assessment of employability, the examiner should give no consideration to the Veteran's age or any impairment caused by non-service-connected disabilities. Service connection is currently in effect for low back pain, diabetes mellitus, right eye arcus senilis, hypertension, status post small lacunar infarct stroke, PTSD, and peripheral neuropathy of the bilateral lower extremities. However, the examiner is asked to address whether or not any grant of service connection for either sleep apnea and/or bilateral carpal tunnel syndrome would affect his or her opinion as to the Veteran's employability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 8. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs