Citation Nr: 1502900 Decision Date: 01/21/15 Archive Date: 01/27/15 DOCKET NO. 13-03 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence sufficient to reopen a claim for service connection for diabetes mellitus has been received, and, if so, whether service connection is warranted. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to September 1992. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a January 2012 rating decision of the St. Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is now with the Baltimore, Maryland RO. The Veteran testified before the undersigned Veterans Law Judge at a hearing in June 2013. A transcript of the hearing has been associated with the Veteran's Virtual VA Claims File. In June 2013, the Board received new, pertinent evidence from the appellant, accompanied by a waiver of review by the agency of original jurisdiction. 38 C.F.R. § 20.1304. The Board notes that the Veteran's claim for service connection for diabetes mellitus was previously denied in an August 2007 rating decision. That decision was not appealed to the Board and became final. The Veteran filed to reopen the claim in May 2011. The Board is required to address the issue of whether the Veteran submitted new and material evidence regardless of the RO's findings. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of the claim. Id. As such, the issues have been captioned as set forth above. The issue of entitlement to service connection for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The RO denied service connection for diabetes in an August 2007 rating decision. The Veteran did not appeal that decision, and it is final. 2. Some of the new evidence submitted subsequent to August 2007 in support of the Veteran's claim for service connection for diabetes mellitus is material. 3. The Veteran's sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The August 2007 RO rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. § 3.160(d), 20.201, 20.302 (2014). 2. New and material evidence has been received and the Veteran's claim for service connection for diabetes mellitus is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2014). 3. The requirements for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Duties to Notify and Assist VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in May 2011. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in that letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The claims file includes service treatment records, VA treatment records, private treatment records, and the Veteran's statements in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. No VA examination has been secured in connection with the service connection claim for sleep apnea because examinations are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability; (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). As described in detail below, there is insufficient evidence establishing that the Veteran has sleep apnea related to service. No examination is necessary in such situations. Hence, no further notice or assistance to the appellant is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. New and Material Evidence Unappealed rating actions of the RO are final. 38 U.S.C.A. § 7105. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108. New and material evidence must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). A claim becomes final and subject to a motion to reopen only after the appeal period has run; interim submissions before finality must be considered as part of the original claim pursuant to 38 C.F.R. § 3.156(b). Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The appellant did not appeal the August 2007 rating decision that denied the claim for service connection for diabetes or submit any additional evidence during the appeal period. That decision was the last time the appellant's claim was finally disallowed on any basis. See Glynn v. Brown, 6 Vet. App. 523 (1994). Thus, the August 2007 rating decision is final. 38 C.F.R. § 20.1100. The pertinent regulations require that evidence raise a reasonable possibility of substantiating a claim in order to be considered "new and material," and define material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). Whether new and material evidence is submitted is also a jurisdictional test - if such evidence is not submitted, then the claim cannot be reopened. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Proper analysis of the question requires a determination of whether the claim should be reopened and, if so, an adjudication on the merits after compliance with the duty to assist. The evidence of record as of the August 2007 RO decision included the Veteran's service treatment records and post-service treatment records. The RO denied the claim because the Veteran's diabetes was not diagnosed until June 1995, nearly three years after he was discharged from service. Evidence received since the August 2007 RO decision includes additional post-service treatment records. In June 2013, the Veteran also testified at the Board hearing and argued that his blood test results started to show elevated amounts of sugar and glucose prior to his diagnosis. He also testified that he began to urinate excessive amounts during service. The Board finds that the treatment records and testimony are new pieces of evidence, as they are not cumulative or redundant and were not previously considered. The records are also material because it relates to an unestablished fact and supports the Veteran's claim for service connection. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low; the Board finds that the threshold is met and that VA's duty to assist is triggered. As new and material evidence has been received, reopening of the claim for entitlement to service connection for diabetes mellitus is warranted. III. Service Connection Criteria The Veteran claims entitlement to service connection for sleep apnea. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Service treatment records (STR) are negative for any sleep disorder or complaints related to sleeping or snoring. At the Veteran's separation examination in August 1992, sleep apnea was not noted. In fact, on the Veteran's Report of Medical History provided prior to the examination, he denied "frequent trouble sleeping" or any nose problems. While he did make note of numerous other complaints, he made no mention of a sleep problem. Post-service treatment records reflect that the Veteran was diagnosed with sleep apnea following a sleep study in 2010, 18 years after service. However, that sleep study does not contain an opinion on the etiology of the Veteran's condition. The Board notes that a lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, over 18 years separate service from treatment and diagnosis. There are no other treatment records of note dealing with a sleep problem from his separation from service until the 2010 sleep study. While there are numerous records reflecting other problems, there is no mention of complaints of sleep apnea until many years after service. The Board also considered the lay evidence provided by the Veteran, including letters from family members and acquaintances. They indicate that the Veteran was snoring for many years during service. The statements also indicate that the Veteran had low energy and fell asleep in public sometimes. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the sleep apnea at issue in this case falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds that the competent evidence of record weighs against the claim for service connection. The Board notes that as the Veteran was separating from service in 1992, he filed a claim for 18 disabilities. However, sleep apnea was not one of them. He filed another claim in April 1996, again not for sleep apnea. He filed another claim for service connection for several disabilities in February 2007; again sleep apnea was not one of the disorders claimed. Not until May 2011, did the Veteran file a claim for sleep apnea. The fact that the Veteran filed dozens of claims for service connection for many different disabilities indicates that he was not suffering from any sleep related problems for many years after service. The lack of a claim and the lack of any medical evidence of a sleep problem in the years after service lessens the credibility of the lay evidence. There is no indication of sleep apnea or symptoms thereof in the STRs, nor is there an indication of complaints or diagnosis of sleep apnea for over 18 years following service. The Board therefore concludes that the evidence is against a nexus between the Veteran's claimed disability and active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been received, the Veteran's claim for service connection for diabetes mellitus is reopened and, to that extent only, the appeal is granted. Entitlement to service connection for sleep apnea is denied. REMAND As discussed above, the claim of entitlement to service connection for diabetes mellitus has been reopened upon a finding that new and material evidence has been received. However, additional development is necessary. The Veteran contends that he began experiencing signs and symptoms of diabetes during service. While the urinalysis was negative at his separation examination in August 1992, he did show some signs at a November 1992 treatment session when he was noted to be at risk of diabetes and advised to diet and exercise. The claims file does not note a diagnosis until 1995; however, since the evidence raises the possibility that the Veteran began experiencing diabetes within a year of discharge, a remand is necessary to obtain VA medical opinions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4) (2014). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent and etiology of his diabetes mellitus. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history, and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine on the following question: Whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's diabetes mellitus is etiologically related to the Veteran's active duty service. The examiner is requested to provide a rationale for any opinion expressed. The examiner is asked to specifically comment on the Veteran's claim that he began urinating excessively during service and the lab results from November 1992. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed condition. 2. Then, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for appellate review. 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 2014). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs