Citation Nr: 1627013 Decision Date: 07/07/16 Archive Date: 07/14/16 DOCKET NO. 11-22 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to August 1984, and from November 1994 to March 2006. These matters come to the Board of Veterans' Appeals (Board) from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in July 2010, a statement of the case was issued in May 2011, and a substantive appeal was received in July 2011. The issues of entitlement to service connection for a cervical spine disability and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed October 2007 rating decision, the RO denied the Veteran's claim of entitlement to service connection for spondylosis and degenerative disc disease of the cervical spine; the Veteran did not file a notice of disagreement and no additional evidence was received within a year of its issuance. 2. Additional evidence received since the RO's October 2007 decision is new and relates to an unestablished fact necessary to substantiate the claim of service connection for a cervical spine disability. CONCLUSIONS OF LAW 1. The October 2007 rating decision that denied the Veteran's service connection claim for spondylosis and degenerative disc disease of the cervical spine is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2015). 2. New and material evidence has been received since the October 2007 RO decision denying entitlement to service connection for spondylosis and degenerative disc disease of the cervical spine. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New & material evidence The Veteran's claim of entitlement to service connection for spondylosis and degenerative disc disease of the cervical spine was denied in an October 2007 rating decision on the basis of no evidence of a relationship between a current cervical spine disability and service. At the time of that decision, service treatment records were of record, as were VA treatment records dated in 2007 reflecting a diagnosis of spondylosis and degenerative disc disease of the cervical spine. The Veteran did not file a notice of disagreement with the rating decision and no new and material evidence was received within a year of issuance of that rating decision; the decision is final. 38 U.S.C.A. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). Even where the RO determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. New and material evidence is evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In January 2010, the Veteran filed a petition to reopen. In his substantive appeal, the Veteran asserted that his cervical spine disability began on active duty and has gotten progressively worse since separating from service. The Veteran asserted that he was treated for his cervical spine condition while on active duty but his doctors failed to note the frequency and severity of the condition in his service treatment records. The Veteran's new lay statements of suffering from a cervical spine condition since service and following service raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For the above reasons, the claim of service connection for a cervical spine disability is reopened. 38 U.S.C.A. § 5108. ORDER New and material evidence having been received, the petition to reopen the issue of entitlement to service connection for a cervical spine disability is granted. REMAND Cervical spine disability In light of the current cervical spine diagnosis and the Veteran's lay statements with regard to his cervical spine disability during and post-service, the Veteran should be afforded a VA examination to assess the etiology of his condition. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006) (stating that the threshold for requiring an examination under VA's duty to assist is low, and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service). Sleep apnea In his July 2011 substantive appeal, the Veteran asserted that while on active duty he was not aware of the symptoms of sleep apnea. He reported that he did not know that excessive snoring was a symptom of sleep apnea and he was not aware that this was causing him to stop breathing at night. These symptoms led to poor sleep and him being tired during the day. An October 2010 'Certificate of Illness' from a VA physician reflects that sleep apnea was diagnosed in 2009 and it is "possible more than likely" that the Veteran's sleep apnea was service related. 11/02/2010 VBMS entry, Medical Treatment Record-Government Facility. Thus, the competent evidence of record reveals a current diagnosis of sleep apnea. However, the Board finds that this opinion, which uses the word "possible," is too speculative to grant the issue. In light of the diagnosis of sleep apnea, the opinion of the October 2010 VA physician, and the Veteran's lay assertions, the Veteran should be afforded a VA examination to assess the etiology of his condition. See McLendon, 20 Vet. App. at 81. On remand, associate with the claim file updated VA treatment records for the period from January 12, 2010. Accordingly, the case is REMANDED for the following actions: 1. Obtain updated VA treatment records for the period from January 12, 2010. 2. Schedule the Veteran for a VA examination with a clinician with appropriate expertise to ascertain the nature and etiology of his claimed cervical spine disability. The claims file should be made available to and be reviewed by the examiner to become familiar with the Veteran's pertinent medical history. Any medically indicated tests should be accomplished, and all tests and clinical findings should be clearly reported. The examiner is asked to respond to the following: a) Is a cervical spine disability at least as likely as not (50 percent or greater probability) due to service or any incident therein? b) Did a chronic cervical spine disability with arthritis manifest within a year of separation from active service? Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. Schedule the Veteran for a VA examination with a clinician with appropriate expertise to ascertain the nature and etiology of his claimed sleep apnea. The claims file should be made available to and be reviewed by the examiner to become familiar with the Veteran's pertinent medical history. Any medically indicated tests should be accomplished, and all tests and clinical findings should be clearly reported. The examiner should respond to the following: Is sleep apnea at least as likely as not (50 percent or greater probability) due to service or any incident therein? Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 4. Thereafter, adjudicate the service connection issues. If the benefits sought are not granted in full, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran and his representative should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ PAUL SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs