Citation Nr: 1607500 Decision Date: 02/26/16 Archive Date: 03/04/16 DOCKET NO. 10-08 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a sleep disorder to include sleep apnea. 2. Entitlement to service connection for a sleep disorder to include sleep apnea. 3. Entitlement to service connection for B-cell leukemia/hairy cell leukemia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to August 1986. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of entitlement to service connection for a sleep disorder to include sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for sleep apnea was last denied in a February 1995 rating decision. The evidence added to the record with regard to sleep apnea since that decision is not cumulative or redundant, it cures a prior evidentiary defect and raises a reasonable possibility of substantiating the claim. 2. A diagnosis of B-cell leukemia/hairy cell leukemia is not shown by the record. CONCLUSIONS OF LAW 1. The February 1995 rating decision denying service connection for sleep apnea is final. New and material evidence to reopen the claim for service connection for a sleep disorder to include sleep apnea has been received and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156 (a), 3.159 (2015). 2. B-cell leukemia/hairy cell leukemia was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in October 2008 and May 2011, VA advised the Veteran of the information and evidence needed to substantiate the claims. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records/VA examinations, and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). New and Material Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105. An 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 decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence 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). 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). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran appeals the denial to reopen the claim for entitlement to service connection for a sleep disorder to include sleep apnea. In a February 1995 rating decision, service connection for sleep apnea was denied. VA noted that testing reported an essentially normal study. It was also determined that there was no diagnosis or treatment during service for sleep apnea. The Veteran submitted a notice of disagreement to the decision in March 1995 and a statement of the case was issued in November 1995. He did not submit a VA Form 9 substantive appeal nor did he submit new and material evidence within a year of the decision. The February 1995 rating decision is therefore final. 38 U.S.C.A. § 7105. At the time of the February 1995 rating decision, the record contained service treatment records showing complaints of sleep problems. Since the last final denial, the Veteran has resubmitted statements claiming that his sleep apnea is related to service. Significantly, a September 2007 examination report confirming a diagnosis of mild obstructive sleep apnea has also been submitted since the last final denial. After reviewing the evidence of record available at the time of the February 1995 rating decision and in light of the evidence received since to include the confirmed diagnosis of sleep apnea, the Board finds that the new evidence raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for sleep apnea. Accordingly, the claim is reopened. The Board defers considering the merits of the claim pending the development outlined below. Service Connection The Veteran appeals the denial of entitlement to service connection for B-cell leukemia/hairy cell leukemia. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). VA regulations define that "service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, hairy cell leukemia and other chronic B-cell leukemias shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. After review of the record, the Board finds against the claim. In this regard, basic entitlement to disability compensation derives from 38 U.S.C.A. §§ 1110, 1131. That statute provides for compensation, beginning with the words: "For disability resulting from personal injury suffered of disease contracted in the line of duty. . . .". Thus, in order for a veteran to qualify for entitlement to compensation under this statute, the veteran must prove the existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, there is no competent evidence showing that the Veteran has B-cell leukemia/hairy cell leukemia, or that he has had either disorder since he filed his claim for service connection. The Board has reviewed the service treatment records, post service treatment records and lay statements of record, however, none of these show a diagnosis of B-cell leukemia/hairy cell leukemia. Implicit in the claim is the Veteran's belief that he has B-cell leukemia/hairy cell leukemia. As a lay person who is not trained in the field of medicine, however, the appellant has not established his competence to establish the existence of such. The Board finds that the question of whether the Veteran has B-cell leukemia/hairy cell leukemia is beyond the realm of a layman's competence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no showing of B-cell leukemia/hairy cell leukemia at the time of filing of the claim or at any time during this appeal. In the absence of proof of a disability, there can be no valid claim regardless of the theory of entitlement. Should the pathology reappear in the future, the appellant may file a new claim at that time. The claim is denied. ORDER New and material evidence has been received, the claim for entitlement to service connection for a sleep disorder to include sleep apnea is reopened. Entitlement to service connection for B-cell leukemia/hairy cell leukemia is denied. REMAND Having reopened the claim of entitlement to service connection for a sleep disorder to include sleep apnea a remand is warranted for additional due process considerations. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The United States Court of Appeals for Veterans Claims has held that before the Board may address a matter that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. In this case, the RO has not considered the claim for service connection for a sleep disorder to include sleep apnea on the merits in light of the newly submitted evidence. As such, a remand is warranted so that they can do so without prejudice to the Veteran. The Board also finds that a VA examination is warranted to determine if the Veteran's current sleep apnea is related to service. To that end, the Board notes that the Veteran claims that his sleep problems started in service and have continued since that time. Service treatment records show that the Veteran complained of sleep difficulties in November 1968 and during his examination in April 1986 he reported frequent trouble sleeping. He also reported problems breathing while sleeping in December 1986. As the record shows in service complaints and post service complaints within a few months after separation, the Board finds that an examination is warranted. The Board also notes that the Veteran is now service connected for hypertension and he indicates that his sleep apnea and hypertension are related. On remand, an opinion on this matter should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a Veterans Claims Assistance Act of 2000 (VCAA) notice letter regarding his claim for entitlement to service connection for a sleep disorder to include sleep apnea. 2. Schedule the Veteran for a VA examination to determine if he has sleep apnea that is related to service and/or his service connected hypertension. Access to the claims file, Virtual VA and VBMS must be made available to the examiner for review. After review of the record, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had its onset in or is otherwise related to his military service. The examiner must also address whether sleep apnea was caused and/or is permanently aggravated by his service-connected hypertension. If aggravation is found, the examiner must identify the baseline level of severity of sleep apnea as established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Any opinion offered must take into account the Veteran's history and contentions and must be supported by a complete and fully reasoned rationale. 3. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ must readjudicate the issue. If the benefits sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. 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 specifically includes the submission of well-reasoned medical opinion evidence finding that it is at least as likely as not that a sleep disorder to include sleep apnea is related to service. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs