Citation Nr: 18145625 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-22 284 DATE: October 29, 2018 ORDER The request to reopen the previously denied claim of entitlement to service connection for parasomnia is granted. The request to reopen the previously denied claim of entitlement to service connection for post-traumatic stress disorder (PTSD) is granted REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for parasomnia is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. FINDINGS OF FACT 1. In an unappealed June 1996 rating decision, the RO denied service connection for parasomnia because the evidence failed to demonstrate that the Veteran suffered from parasomnia due to his service. 2. Evidence received since the June 1996 rating decision includes information that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for parasomnia. 3. In an unappealed September 2012 rating decision, the RO denied service connection for PTSD because the evidence did not indicate that the Veteran suffered from PTSD as a result of his service. 4. Evidence received since the September 2012 rating decision includes information that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The June 1996 rating decision that denied service connection for parasomnia became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received after the June 1996 rating decision is new and material to reopen a claim of entitlement to service connection for parasomnia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2012 rating decision that denied service connection for PTSD became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. Evidence received after the September 2012 rating decision is new and material to reopen a claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to November 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal of May 2014 and October 2015 rating decisions. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons, 23 Vet. App. at 5. Given the evidence of record, as discussed below, the Board will reopen the Veteran’s claim of entitlement to service connection for PTSD and will re-characterize the psychiatric issue on appeal as entitlement to service connection for an acquired psychiatric disorder. 1. The request to reopen the previously denied claim of entitlement to service connection for parasomnia is granted. The Board is required to determine whether new and material evidence has been received before it can reopen a claim. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, VA shall reopen and review an adjudicated claim when a veteran submits new and material evidence that raises a reasonable possibility of substantiating the adjudicated claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the veteran’s claim. 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). The Veteran filed a claim of entitlement to service connection for parasomnia in February 1996. As part of a February 1996 letter, the Veteran stated that he suffered from parasomnia “all through [his] four years of active duty,” but that it worsened during his second year of service. Separate lay statements provided by individuals with knowledge of the Veteran’s parasomnia stated that the Veteran suffered from sleep walking. Service connection for parasomnia was denied in a June 1996 rating decision because the evidence of record failed to demonstrate that the Veteran suffered from parasomnia as a result of his service, and because the Veteran’s parasomnia represented a pre-existing developmental abnormality for which he was not entitled to service connection. The Veteran did not file a notice of disagreement with this rating decision, and the June 1996 rating decision became final. In September 2013, the Veteran filed an application to reopen his previously denied claim of entitlement to service connection for parasomnia. In May 2014, the RO denied the Veteran’s application to reopen his previously denied claim of entitlement to service connection for parasomnia. The May 2014 denial is now before the Board for adjudication. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; Young v. Shinseki, 22 Vet. App. 461, 468 (2011). New evidence submitted after the June 1996 rating decision rating decision (the prior final denial which addressed the merits of the claim on appeal) includes VA treatment records, private treatment records, lay statements (including an October 2012 statement in which the Veteran asserted that his parasomnia worsened after he incurred head trauma during his service), and a March 2014 VA examination report. This evidence is new because it was not previously of record. The Board finds that the new evidence, aside from the March 2014 VA examination report, is material because it raises a reasonable possibility of substantiating the Veteran’s claim, including on the basis that he suffers from pre-existing parasomnia that worsened during his service. Therefore, this new and material evidence is sufficient to reopen the previously denied claim of entitlement to service connection for parasomnia. See 38 C.F.R. § 3.156. 2. The request to reopen the previously denied claim of entitlement to service connection for PTSD is granted. As stated, the Board is required to determine whether new and material evidence has been received before it can reopen a claim. See Barnett, 83 F.3d at 1383-1384. The RO of record denied service connection for PTSD in a September 2012 rating decision because the evidence of record failed to demonstrate that the Veteran suffered from PTSD as a result of his service. The Veteran filed a notice of disagreement with this rating decision, and submitted an October 2012 medical opinion letter that described the Veteran as suffering from PTSD due to an incident that occurred during an in-service training exercise. The Veteran withdrew his claim of entitlement to service connection for PTSD in a November 2013 letter. The Veteran did not receive a statement of the case or supplemental rating decision that addressed the October 2012 medical opinion letter. The September 2012 rating decision became final. In November 2013, the Veteran filed a new claim of entitlement to service connection for PTSD, to include as residual to a TBI. In May 2014, the RO denied the Veteran’s claim of entitlement to service connection for PTSD, for lack of new and material evidence. The Board notes that the RO denied the Veteran’s claim despite the October 2012 medical opinion letter. The May 2014 denial is now before the Board for adjudication. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; Young v. Shinseki, 22 Vet. App. 461, 468 (2011). New evidence submitted after the September 2012 rating decision (the prior final denial which addressed the merits of the claims on appeal) includes VA treatment records, private treatment records, lay statements, and the October 2012 medical opinion letter. This evidence is new because it was not previously of record. The Board notes that the October 2012 medical opinion letter was received by agency decision makers after the September 2012 rating decision became final following the Veteran’s withdrawal of his claim of entitlement to service connection for PTSD. See 38 C.F.R. § 20.1103. The Board finds that the new evidence is material because it raises a reasonable possibility of substantiating the claim. Therefore, this new and material evidence is sufficient to reopen the previously denied claims. See 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a TBI is remanded. A November 2014 VA treatment record notes the Veteran as suffering from “mild damage in his frontal lobe and parietal lobe areas.” The treatment record also describes the Veteran as endorsing “significant cognitive symptoms, as well as PTSD.” The Veteran asserts that he suffers from residuals of a TBI due to an in-service head injury that occurred when two “flash bangs [blew] up in [his] face during training[.]” The Veteran has also stated that he incurred an in-service head injury during a sleep walking episode. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a TBI because no VA examiner has opined whether the Veteran suffers from a TBI due to his service, to include as due to the in-service head injuries described by the Veteran. An examination is required to resolve this claim. 2. Entitlement to service connection for parasomnia is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for parasomnia because no VA examiner has provided an adequate opinion that addresses whether the Veteran suffers from parasomnia as a result of his service. At issue in this case is whether the Veteran’s parasomnia clearly and unmistakably (undebatable) preexisted the his service, and whether the Veteran’s service aggravated his parasomnia beyond its natural progression. If the evidence does not indicate that the Veteran’s parasomnia clearly and unmistakably existed prior to his service, then the Veteran is entitled to the presumption of soundness. The author of a March 2014 VA examination report opined that the Veteran’s parasomnia existed prior to his service, and that the Veteran’s service did not aggravate his parasomnia. The examiner did not provide a rationale for either opinion. An addendum opinion is required to resolve this claim, and should discuss the Veteran’s lay statements as to the relationship between his parasomnia and his reported in-service head injury. As a decision on the remanded issue of entitlement to service connection for a TBI could significantly impact a decision on the issue of entitlement to service connection for parasomnia, the issues are inextricably intertwined. A remand of these claims is required. 3. Entitlement to service connection for sleep apnea is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for sleep apnea because no VA examiner has opined whether the Veteran suffers from sleep apnea due to his service, to include as due to the above described in-service head injury. As a decision on the remanded issue of entitlement to service connection for a TBI could significantly impact a decision on the issue of entitlement to service connection for sleep apnea, the issues are inextricably intertwined. A remand of these claims is required. 4. Entitlement to service connection for migraines is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for migraines because no VA examiner has opined whether the Veteran suffers from migraines due to his service, to include as due to the above described in-service head injury. As a decision on the remanded issue of entitlement to service connection for a TBI could significantly impact a decision on the issue of entitlement to service connection for migraines, the issues are inextricably intertwined. A remand of these claims is required. 5. Entitlement to service connection for an acquired psychiatric disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disability because no VA examiner has opined whether the Veteran suffers from an acquired psychiatric disability due to his service, to include as due to the above described in-service head injury. Moreover, as a decision on the remanded issue of entitlement to service connection for a TBI could significantly impact a decision on the issue of entitlement to service connection for an acquired psychiatric disability, the issues are inextricably intertwined. A remand of these claims is required. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any VA treatment records not already of record. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any TBI residuals. The examiner must opine whether the Veteran suffer from TBI residuals due to an in-service injury, event, or disease, including the Veteran’s contention that he suffered from a head injury when two flash bangs exploded near his head. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s parasomnia clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service, to include any in-service injury, event, or disease. As part of any opinion rendered, the examiner should discuss the Veteran’s lay statements as to the relationship between his parasomnia and his reported in-service head injury and/or TBI. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep apnea. The examiner must opine whether it is at least as likely as not related to service, to include any in-service injury, event, or disease; or whether it is at least as likely as not (1) proximately due to residuals of a TBI, or (2) aggravated beyond its natural progression by residuals of a TBI. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any migraines. The examiner must opine whether it is at least as likely as not related to service, to include any in-service injury, event, or disease; or whether it is at least as likely as not (1) proximately due to residuals of a TBI, or (2) aggravated beyond its natural progression by residuals of a TBI. 6. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to service, to include any in-service injury, event, or disease, to include his reported in-service head injury and/or TBI. 7. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Moore, Associate Counsel