Citation Nr: 1801524 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-05 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for a throat condition/sinusitis. 2. Whether new and material evidence has been submitted to reopen a claim for a sleep disorder, to include obstructive sleep apnea. 3. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea. 4. Entitlement to service connection for a thyroid condition 5. Entitlement to service connection for a throat condition/sinusitis, to include as secondary to service-connected broken jaw pain. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to September 2005. He is the recipient of several service awards, including and not limited to the Meritorious Service Medal (four awards); Army Commendation Medal (four awards); Army Achievement Medal; Army Good Conduct Medal (eight awards); National Defense Service Medal (two awards); Korean Defense Service Medal; Global War on Terrorism Service Medal; Army Service Ribbon; and Overseas Service Ribbon (six awards). These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In September 2016, the Veteran testified before the undersigned Veterans Law Judge at a central office hearing in Washington, D.C. A transcript of this hearing is of record. The issues of entitlement to service connection for a throat condition/sinusitis and for a thyroid condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The new and material evidence received since the last, final June 2006 rating decision, includes the Veteran's hearing testimony about his doctor's assessment of his throat condition, which has a possible correlation to a service-connected disability and raises a reasonable possibility of substantiating the service connection claim for a throat condition/sinusitis. 2. The new and material evidence received since the last, final June 2006 rating decision, includes and is not limited to a documented sleep study diagnosing the Veteran with obstructive sleep apnea, and a nexus opinion/statement from a licensed practical nurse, which raise a reasonable possibility of substantiating the service connection claim for a sleep disorder. 3. Resolving all reasonable doubt in favor of the Veteran, his obstructive sleep apnea was incurred in service. CONCLUSIONS OF LAW 1. Evidence received since the final June 2006 rating decision is new and material and the service connection claim for a throat condition/sinusitis is reopened. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. Evidence received since the final June 2006 rating decision is new and material and the service connection claim for a sleep disorder is reopened. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1111, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New & Material Evidence to Reopen Claims for a Throat Condition/Sinusitis and a Sleep Disorder VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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 new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last, final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510 - 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Throat Condition/Sinusitis The Veteran's service connection claim for a throat condition was previously denied in a June 2006 rating decision because the RO made a finding that there was no evidence of a current disability found on a VA examination. After this rating decision, the Veteran did not perfect an appeal of this decision within one year; therefore, the June 2006 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Evidence received and obtained since the June 2006 decision includes the Veteran's testimony at his September 2016 Board hearing, in which he indicated that his doctor informed him that he had a throat condition that was related to his service-connected broken jaw, and that this was his body's response to the broken jaw. This evidence is "new" because it is competent lay testimony from the Veteran, which had not been previously submitted and considered by VA. The evidence is "material" because it serves as evidence of a diagnosis of his throat condition, which is possibly correlated with a service-connected disability. The Board recognizes that this additional piece of evidence is presumed to be credible for the purpose of reopening the claim. Justus, 3 Vet. App. at 512 - 513. Therefore, this additional piece of evidence, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran's claim. Thus, as new and material evidence has now been received, the service connection claim for a throat condition is reopened. Sleep Disorder The Veteran's service connection claim for a sleep disorder was previously denied in a June 2006 rating decision because the RO made a finding that the medical evidence of record failed to show that this disability had been clinically diagnosed; that the Veteran's response to a request for additional evidence did not provide a copy of a documented sleep study; and that there was no medical evidence of a current disability found on a VA examination with a link to military service. After this rating decision, the Veteran did not perfect an appeal of this decision within one year; therefore, the June 2006 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Evidence received and obtained since the June 2006 rating decision includes, and is not limited to, a diagnosis of obstructive sleep apnea in a December 2008 polysomnograph report from Walter Reed Medical Center, as well as a February 2011 statement/medical nexus opinion from a licensed practical nurse, who witnessed the Veteran's sleep disorder symptoms while he was in service. See December 2008 Polysomnograph Report; see also February 2011 Correspondence/Statement from Licensed Practical Nurse, R.T. These pieces of evidence are "new" because they had not been previously submitted and considered by VA. They are "material" because they provide a current diagnosis and a positive nexus opinion on the Veteran's sleep disorder. The Board recognizes that these additional pieces of evidence are presumed to be credible for the purpose of reopening the claim. Justus, 3 Vet. App. at 512 - 513. Therefore, these additional pieces of evidence, when considered in conjunction with the record as a whole, raise a reasonable possibility of substantiating the Veteran's claim. Thus, as new and material evidence has now been received, the service connection claim for a sleep disorder is reopened. Service Connection for a Sleep Disorder Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general rule, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran asserts that his current diagnosis of a sleep disorder, specifically, obstructive sleep apnea, was incurred during active service. See September 2016 Board Hearing Transcript. In support of his service connection claim, the Veteran submitted a February 2011 statement/opinion from a licensed practical nurse, R.T. In her statement, R.T. indicated that she has known the Veteran since 2003, while he was still on active duty as a provost sergeant. She opined that he was suffering from obstructive sleep apnea while he was still in service. As the basis and rationale for her opinion, she explained that she witnessed the Veteran when they traveled for events and that he would fall asleep at night in his room and would wake up gasping for air. She further stated that when she occasionally checked on him during the night, he was not breathing and she had to wake him up and change his sleeping position in order for him to breathe. She also indicated that she had discussions with the Veteran about seeking medical assistance but that the Veteran informed her that the doctors told him that he just needed some rest. The Board finds that this February 2011 statement/opinion from R.T. is the most probative evidence of record because it is dispositive of this issue. In her capacity as a medical professional, a licensed practical nurse, R.T.'s opinion is supported by a clear, detailed rationale that is based on her observation of the Veteran during active service, first hand, as well as her familiarity with the kind of sleep apnea symptoms the Veteran manifested. Additionally, given that the Veteran's entrance exam is silent for any diagnosis or report of any sleep disorder, the Board finds that the evidence of record is in relative equipoise. Therefore, resolving all reasonable doubt in favor of the Veteran, service connection for a sleep disorder, to include obstructive sleep apnea, is established. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). ORDER New and material evidence has been submitted and the claim to reopen the service connection claim for a throat condition/sinusitis is granted. New and material evidence has been submitted and the claim to reopen the service connection claim for a sleep disorder is granted. Entitlement to service connection for obstructive sleep apnea is granted. REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on the remaining appealed issues of entitlement to service connection for a thyroid condition and for a throat condition. At his September 2016 Board hearing, the Veteran testified that there were outstanding treatment records from Walter Reed Medical Center, which had not been associated with his claims file, that provided information and a diagnosis of a thyroid condition. Accordingly, he requested that the case be held open for 90 days for an opportunity to obtain these outstanding treatment records. See September 2016 Board Hearing Transcript. However, given that more than 90 days have elapsed since this hearing, and that these records are still not associated with the claims file, a remand is required for the AOJ to obtain these outstanding treatment records and associate with the claims file. Additionally, the Veteran has not yet been afforded a VA examination on the presence and/or etiology of his thyroid condition. Thus, a VA examination on his thyroid condition is also warranted on remand. Also at the September 2016 Board hearing, the Veteran testified that his doctor informed him that his throat condition was related to his service-connected broken jaw. Accordingly, he asserts that AOJ overlooked and failed to consider his service connection claim for a throat condition on the basis of secondary-service connection, pursuant to 38 C.F.R. § 3.310. Given the Veteran's competent lay assertions, as well as evidence of in-service treatment for tonsilopharynus (a potential related injury or illness), a remand is required for a VA examination and nexus opinion on the basis of direct or secondary service connection. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding treatment records from Walter Reed Medical Center and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any thyroid condition. A copy of this remand must be provided to the VA examiner. Then, the VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake the following: a. Opine as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed thyroid condition is related to his active service. b. Construe all disclosures and statements from the Veteran as competent lay statements, unless there is good reason to believe that the information being provided by the Veteran cannot be reliable. If it is determined that there is another likely etiology for any diagnosed thyroid condition, please indicate and provide a clear, detailed explanation. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 3. Also, schedule the Veteran for a VA examination to determine the presence, and if any, etiology, of his throat condition. A copy of this remand must be provided to the VA examiner. Then, the VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake the following: a. Determine the presence of any throat condition. b. Opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's throat condition is related to his active service. c. Construe all disclosures and statements from the Veteran as competent lay statements, unless there is good reason to believe that the information being provided by the Veteran cannot be reliable. If it is determined that there is another likely etiology for the Veteran's throat condition, please indicate and provide a clear, detailed explanation. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 4. After ensuring compliance with the above-mentioned developments, readjudicate the claims. If this decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response from the Veteran or his representative. Then, return the case to the Board for further development. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (West 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs