Citation Nr: 18140105 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-20 518 DATE: October 2, 2018 ORDER As new and material evidence has not been received, the previously denied claim of service connection for obstructive sleep apnea is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for a gastrointestinal disability is not reopened. FINDINGS OF FACT 1. In a rating decision dated on November 7, 2012, the Agency of Original Jurisdiction (AOJ) denied, in pertinent part, the Veteran’s claim of service connection for obstructive sleep apnea; this decision was not appealed and became final. 2. The evidence received since the November 2012 rating decision is either cumulative or redundant of evidence previously submitted in support of the Veteran’s claim of service connection for obstructive sleep apnea and does not relate to an unestablished fact necessary to substantiate this claim. 3. In a rating decision dated on November 3, 2014, the AOJ reopened, in pertinent part, the Veteran’s previously denied claim of service connection for a gastrointestinal disability (which was characterized as diverticulitis and intestinal neoplasm, to include surgery residuals) and denied this claim on the merits; this decision was not appealed and became final. 4. The evidence received since the November 2014 rating decision is either cumulative or redundant of evidence previously submitted in support of the Veteran’s claim of service connection for a gastrointestinal disability and does not relate to an unestablished fact necessary to substantiate this claim. CONCLUSIONS OF LAW 1. The November 2012 rating decision, which denied the Veteran’s claim of service connection for obstructive sleep apnea, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.302 (2017). 2. Evidence received since the November 2012 rating decision in support of the claim of service connection for obstructive sleep apnea is not new and material; thus, this claim is not reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The November 2014 rating decision, which reopened and denied a claim of service connection for a gastrointestinal disability on the merits, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.302 (2017). 4. Evidence received since the November 2014 rating decision in support of the claim of service connection for a gastrointestinal disability is not new and material; thus, this claim is not reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January to June 1990 and from January 2003 to July 2004 in the U.S. Army, including in combat in Iraq in support of Operation Enduring Freedom. He also had additional unverified U.S. Army Reserve service. The Veteran appointed his current service representative to represent him before VA by filing a completed VA Form 21-22 at the AOJ in August 2014. As noted above, in a November 2012 rating decision, the AOJ denied, in pertinent part, the Veteran’s claim of service connection for obstructive sleep apnea. This decision was not appealed and became final. See 38 U.S.C. § 7104 (West 2012); 38 C.F.R. § 20.302 (2017). Similarly, in a November 2014 rating decision, the AOJ reopened and denied, in pertinent part, the Veteran’s claim of service connection for a gastrointestinal disability on the merits. This decision also was not appealed and became final. The Veteran further did not submit any relevant evidence or argument within 1 year of the November 2012 or November 2014 rating decisions which would render either of these rating decisions non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issues of whether new and material evidence has been received to reopen claims of service connection for obstructive sleep apnea and for a gastrointestinal disability are as stated above. Regardless of the AOJ’s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Service Connection The Veteran essentially contends that new and material evidence has been received sufficient to reopen his previously denied claims of service connection for obstructive sleep apnea and for a gastrointestinal disability. Neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that Board not required to address issues unless specifically raised by claimant or reasonably raised by record evidence). Whether new and material evidence has been received to reopen claims of service connection for obstructive sleep apnea and for a gastrointestinal disability The Board finds that the preponderance of the evidence is against granting the Veteran’s requests to reopen his previously denied claims of service connection for obstructive sleep apnea and for a gastrointestinal disability. Despite the Veteran’s assertions to the contrary, the newly received evidence does not support reopening either of these previously denied claims. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran requested that his previously denied service connection claims be reopened when he submitted a VA Form 21-4138 which was dated on February 11, 2015, and date-stamped as received by the AOJ on February 25, 2015. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran’s application to reopen the previously denied service connection claim for obstructive sleep apnea, the evidence before VA at the time of the prior final AOJ decision in November 2012 consisted of his service treatment records, post-service VA and private outpatient treatment records, and lay statements. The AOJ essentially found that there was no evidence of obstructive sleep apnea during active service and no etiological link between the Veteran’s current obstructive sleep apnea and service. Thus, the claim was denied. With respect to the Veteran’s application to reopen the previously denied service connection for a gastrointestinal disability, the evidence before VA at the time of the prior final AOJ decision in November 2014 consisted of his service treatment records, his post-service VA outpatient treatment records and examination reports, and his lay statements. The AOJ essentially found that, although the newly received evidence supported reopening the previously denied claim, it did not support granting this claim on the merits because there still was no medical nexus between the Veteran’s current gastrointestinal disability (which was characterized as diverticulitis and intestinal neoplasm, to include surgery residuals) and active service. Thus, the claim was denied. The newly received evidence still does not indicate that the Veteran’s current obstructive sleep apnea or gastrointestinal disability is related to active service or any incident of service. The evidence received since November 2012 (for obstructive sleep apnea) and since November 2014 (for a gastrointestinal disability) consists of additional post-service VA and private outpatient treatment records and the Veteran’s lay statements. Although this newly received evidence confirms ongoing complaints of and treatment for current disability due to the Veteran’s obstructive sleep apnea and gastrointestinal disability, it does not relate either of these disabilities to active service. In other words, the Board finds that the evidence received since November 2012 or November 2014, respectively, is duplicative of evidence previously considered by the AOJ in adjudicating the Veteran’s claims. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Shade v. Shinseki, 24 Vet. App 110 (2010), that the phrase “raises a reasonable possibility of substantiating the claim” found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as “enabling” reopening of a previously denied claim rather than “precluding” it. All of the newly received evidence is presumed credible solely for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. With respect to the Veteran’s requests to reopen his previously denied service connection claims for obstructive sleep apnea and for a gastrointestinal disability, the Board finds that there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening either of these claims. Unlike in Shade, there is no evidence in this case – either previously considered in the November 2012 AOJ decision, which denied service connection for obstructive sleep apnea, the November 2014 AOJ decision, which reopened and denied service connection for a gastrointestinal disability on the merits, or received since each of these decisions became final – which demonstrates that either of these disabilities is related to active service or any incident of service. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran’s requests to reopen his previously denied service connection claims for obstructive sleep apnea and for a gastrointestinal disability. In summary, as new and material evidence has not been received, the previously denied claims of service connection for obstructive sleep apnea and for a gastrointestinal disability are not reopened. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel