Citation Nr: 1332354 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 13-19 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for obstructive sleep apnea (OSA). 2. Entitlement to service connection for OSA. ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1993 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. 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 reopened claim of service connection for OSA 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 to ensure compliance with applicable law. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACTS 1. In a final July 2009 rating decision, the RO denied entitlement to service connection for OSA. 2. Evidence added to the record since the July 2009 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. CONCLUSIONS OF LAW 1. The July 2009 rating decision that denied the Veteran's claim of entitlement to service connection for OSA is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for OSA. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a). In this decision, the Board reopens the service connection claim for OSA finding that new and material evidence had been received to reopen the claim and remands the issue on the merits. With respect to the claim to reopen based on new and material evidence, this award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. However, consideration of the merits of this issue is deferred pending additional development consistent with the VCAA. The Veteran's claim for service connection for OSA was originally denied in a July 2009 rating decision in which the RO found that there was no evidence that the Veteran's OSA occurred in, or was caused by, his active duty service. 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) (2013). 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. 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, 161-162 (1999). In July 2009, the Veteran was advised of the rating decision and his appellate rights. However, he did not submit a notice of disagreement (NOD) within one year of the rating decision. The Board further observes, in consideration of 38 C.F.R. § 3.156(b), that no evidence pertaining to the Veteran's claim for service connection for OSA was received prior to the expiration of the appeal period stemming from the July 2009 rating decision. Therefore, the July 2009 rating decision is final. 38 U.S.C.A § 7105(c) (West 2002). 38 C.F.R. §§ 3.104, 3.156(b) 20.302, 20.1103 (2013). 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 United States Court of Appeals for Veterans Claims (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. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the July 2009 decision, the RO considered the Veteran's service treatment records, post-service VA treatment records through February 2009 and a lay statement from the Veteran's brother submitted in March 2009. Since the July 2009 rating decision, additional evidence consisting of a lay statement and a statement of the Veteran's VA treating physician has been received, among other evidence. The newly received evidence includes references to, and support of, the Veteran's contention that his OSA occurred while he was in active duty service. Specifically, the Veteran's treating physician summarized his clinical picture and reported symptoms and opined "to a reasonable degree of medical certainty that the Veteran developed [OSA] while in active military duty." 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 an unestablished fact necessary to substantiate the Veteran's claim. Specifically, the July 2011 statement from the Veteran's VA treating physician is new and material because there was no prior competent medical evidence linking his currently diagnosed OSA to his military service. The medical opinion offered by the VA physician is presumed credible for the purposes of evaluating the petition to reopen the claim for service connection for OSA. Justus, supra. Therefore, the Board finds that the new evidence tends to prove a previously unestablished fact 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 OSA is reopened. ORDER New and material evidence has been received, and the appeal to reopen a claim of entitlement to service connection for OSA 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 claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The claims file reflects that pertinent VA records are outstanding. These records must be associated with the claims file before further appellate review. Specifically, the June 2013 statement of the case reflects that the RO reviewed VA treatment records through May 6, 2013, but the claims file only contains VA treatment records dated through 2011. (The earliest VA treatment record on file is from 2003 and the most recent is from 2011.) In sum, it appears that not all relevant VA records are on file. On remand, all outstanding VA records must be secured and associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). The RO/AMC must also afford the Veteran an opportunity to identify any relevant records from private treatment sources. The Board finds that an additional medical opinion is needed. The Veteran was afforded a VA examination in April 2012, but the Board finds the resulting opinion inadequate to decide the Veteran's claim. Specifically, although the examiner reviewed the record, discussed the etiology of the Veteran's sleep apnea, and provided an opinion that sleep apnea did not develop as a result of his military service, the examiner also opined that "sleep apnea may have beg[u]n while he was in service as supported by the letters from his physician [] and shipmate []." As the Board requires clarification of this internal conflict, an additional medical opinion is warranted. See 38 C.F.R. 4.2 (2013) (if an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include any records from the San Diego VA Medical Center, from 1995 to the present and associate them with the claims file or virtual record. 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 identify or submit any 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. 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. After the above development has been completed and all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's April 2012 VA sleep apnea examination. If the April 2012 VA examiner is not available, the claims file should be provided to another appropriate medical professional. The claims file and a copy of this Remand must be made available to the reviewing examiner and the examiner shall note in the examination report that the claims folder and the Remand have been reviewed. The examiner should review the opinion rendered in April 2012 and further explain the rationale. Specifically, the examiner must explain why the April 2012 examination report states both that OSA may have begun in service and that it was likely associated with his post-service weight gain. The examiner should provide a new opinion as to whether it is at least as likely as not (i.e., to at least a 50:50 degree of probability) that the Veteran's OSA began in service or is otherwise related to service. A complete rationale must be provided. If the examiner is unable to render an opinion without resorting to speculation, the examiner must explain why such an opinion cannot be rendered. 4. Readjudicate the claim. If the claim is not granted in full, the Veteran must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate decision. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs