Citation Nr: 1326830	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  10-06 689	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for sleep apnea.

2.  Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1975 to December 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In his February 2010 substantive appeal, the Veteran requested a hearing before the Board in conjunction with his appeal.  However, he later contacted the Board in March 2010 and asked that his hearing request be withdrawn and his appeal to be forwarded to the Board.  Accordingly, appellate adjudication may proceed.

The reopened issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  A July 2006 rating decision denied service connection for sleep apnea, and the Veteran did not appeal that decision in a timely manner nor was any new and material evidence submitted within the appeal period.

2.  Evidence received since the time of the final July 2006 decision raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for sleep apnea.


CONCLUSION OF LAW

1.  The July 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); currently, 38 U.S.C.A. § 7015(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).

2.  Evidence submitted to reopen the claim of entitlement to service connection for sleep apnea is new and material, and the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the Veteran of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence.  38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2012).  Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen the claim.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108 ]."  38 U.S.C.A. § 5103A (f) (West 2002).  Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim.  38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996).

New evidence means existing evidence not previously submitted to VA.  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) (2012).

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim.  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108.  Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).  The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA.  38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011)

The RO denied the Veteran's original claim of service connection for sleep apnea in a July 2006 rating decision on the basis that there was no evidence the claimed condition existed and that service treatment records showed no evidence of sleep apnea during military service.  The Veteran was notified of this decision in July 2006 but did not submit any medical evidence within one year of the July 2006 rating decision, nor did he file a timely appeal to the July 2006 rating decision.  Therefore, it is final.  38 U.S.C.A. § 7105(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006); currently, 38 U.S.C.A. § 7015(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).

In July 2009, the Veteran filed a claim to reopen his claim for service connection for sleep apnea and the RO denied the claim in a November 2009 rating decision.  The RO concluded that the medical evidence submitted in connection with the claim did not constitute new and material evidence because it did not show that sleep apnea occurred in or was caused by active military service.  

The basis of the prior final denial was the RO's finding that there was no current disability of sleep apnea and that it was not shown in service.  Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the July 2006 rating decision that addresses this basis.

Evidence submitted and obtained since the July 2006 rating decision includes private medical records from Tidewater Neurologists, Inc. and Sleep Disorder Specialists, dated from August 2009 to October 2010, reflecting the Veteran's treatment for sleep apnea; VA outpatient treatment records dated from May 2002 to May 2009; private medical records from SleepMed Hampton Roads showing the issuance of a continuous positive airway pressure (CPAP) machine for a diagnosis of sleep apnea and the Veteran's lay statements indicating that he began experiencing the symptoms that were ultimately associated with his sleep apnea while he was on active duty.  Without addressing the merits of this evidence, the Board finds that it addresses the issue of whether the Veteran has current sleep apnea related to his service, and it is presumed credible for the limited purpose of reopening a claim.  Justus, 3 Vet. App. at 512-13.  Thus, this evidence is both "new,' as it has not previously been considered by VA, and "material," as it raises the reasonable possibility of substantiating the Veteran's claim.

The Board thus finds that new and material evidence has been submitted to reopen the issue of entitlement to service connection for sleep apnea, since the July 2006 rating decision.  On this basis, the issue of entitlement to service connection for sleep apnea is reopened.



ORDER

New and material evidence having been submitted, the Veteran's claim for entitlement to service connection sleep apnea is reopened and, to that extent only, the appeal is granted.


REMAND

In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim.  38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.  McLendon, 20 Vet. App. at 83.

In his July 2013 Appellate Brief, the Veteran contends that he has a currently diagnosed disorder, and that he began experiencing the symptoms that were ultimately associated with his sleep apnea while he was on active duty.  He asserts that based on the symptoms he experienced during active duty, a medical opinion should be sought to examine the other potential indicators of a chronic sleep disturbance during active duty, including blood pressure fluctuations, blood sugar readings, weight gain, headaches, fatigue, and any other common condition associated with sleep apnea.  The Veteran is certainly competent to provide lay evidence regarding any symptoms capable of lay observation since service.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay person is competent to testify to that which he or she has actually observed and is within the realm of his or her personal knowledge).  The Board therefore finds that a VA examination is warranted to adequately decide the merits of the claim.  McLendon, 20 Vet. App. at 83.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any updated VA treatment records for the Veteran, dated from May 2010 to the present.  All attempts to obtain those records should be documented in the claims file.

2.  Schedule the Veteran for a VA examination to determine the etiology of his sleep apnea.  The claims folder and a copy of this Remand must be made available to the examiner and reviewed in conjunction with the examination.  All indicated tests, if any, should be conducted.  The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether the Veteran's sleep apnea is at least as likely as not (50 percent probability or more) related to his military service.  In this regard, the examiner is asked to comment on whether there were any potential indicators of a chronic sleep disturbance while in service or any common condition associated with sleep apnea that manifested in service.

A complete rationale must be provided for any opinion stated, to include reference to current clinical findings and/or documents in the claims file.

3.  Notify the Veteran that he must report for the scheduled examination and cooperate in the development of the claim.  Failure to report for a VA examination without good cause may result in denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).  A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and it must reflect that it was sent to his last known address of record.  If he fails to report to the examination, the claims folder must indicate whether the notification letter was returned as undeliverable.

4.  After the above development is completed, readjudicate the claim.  If the decision remains adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs