Citation Nr: 1800683 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-45 331 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Cheyenne, Wyoming THE ISSUE Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for sleep apnea and, if so, whether service connection is warranted. ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Air Force from June 1965 to July 1995. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2015 decision of the Denver, Colorado, Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In February 1996, VA denied service connection for sleep apnea. The Veteran was informed in writing of the adverse determination and his appellate rights in March 1996. The Veteran did not subsequently submit a notice of disagreement (NOD) with the decision. 2. The February 1996 rating decision is final. 3. The additional documentation submitted since the February 1996 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim. 4. Sleep apnea originated during service. CONCLUSIONS OF LAW 1. The February 1996 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for sleep apnea has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2017). 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In February 1996, VA denied service connection for sleep apnea because there was "insufficient clinical evidence to warrant a diagnosis of any acute or chronic disorder." The Veteran was informed in writing of the adverse decision and did not submit an NOD. New and material evidence pertaining to the issue of service connection for sleep apnea was not received by VA or constructively in its possession within one year of written notice to the Veteran of the February 1996 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional documentation received since the February 1996 rating decision includes a letter from the Veteran's private physician stating that he treated him both in service and since his retirement from the military for sleep apnea. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet.App. 510 (1992). Here, without examination of any other evidence of record, the newly-submitted evidence is of such significance that, when considered for the limited purpose of reopening the Veteran's claim, it raises a reasonable possibility of substantiating his claim for service connection when considered with the previous evidence of record. As new and material evidence has been received, the Veteran's claim is reopened. Service treatment records indicate that the Veteran was diagnosed with sleep apnea. A letter from the Veteran's private physician received by VA in December 2015 states that he treated the Veteran while in service and has treated him since his retirement from the military. The physician wrote that the Veteran had sleep studies in 1993 and 1995 which were marginally abnormal and then a 1996 study indicated he was demonstrably abnormal. The Veteran has consistently used a CPAP machine since that time. The physician concluded that "it is very evident that [the Veteran] has had sleep apnea back to 1993 . . . ." Service connection is warranted and the claim is granted. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). ORDER The Veteran's application to reopen his claim of entitlement to service connection for sleep apnea is granted. Service connection for sleep apnea is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs