Citation Nr: 18145675 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-23 931 DATE: October 29, 2018 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for sleep apnea (claimed as difficulty sleeping) is granted. REMANDED The reopened claim of entitlement to service connection for sleep apnea (claimed as difficulty sleeping), to include as due to a medically unexplained chronic multi-symptom illness related to service in Southwest Asia, is remanded. FINDINGS OF FACT 1. A March 2007 rating decision denied the Veteran’s claim for entitlement to service connection for a sleep disability; the Veteran did not file a substantive appeal or submit new and material evidence with one year of that decision. 2. Evidence received since the March 2007 rating decision is new, and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for sleep apnea (claimed as difficulty sleeping). CONCLUSION OF LAW 1. The March 2007 rating decision which denied entitlement to service connection for difficulty sleeping is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen a claim for entitlement to service connection for sleep apnea (claimed as difficulty sleeping); therefore, the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1983 to July 1986, February 2003 to May 2003, and December 2003 to March 2005, including service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Legal Criteria – New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously submitted to VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. Thus, evidence is new and material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. To establish service connection for a disability on a direct-incurrence basis, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran with qualifying service in Southwest Asia who exhibits disability due to an undiagnosed illness or a medically unexplained chronic multi-symptom illness may meet the requirements for service connection on a presumptive basis, if applicable criteria are met. See 38 C.F.R.§ 3.317. Analysis The Veteran filed a claim for entitlement to service connection for difficulty sleeping in August 2006. The RO denied the claim in a March 2007 rating decision, finding that difficulty sleeping is not considered a disabling condition, and service medical records were negative for any treatment or diagnosis of a sleep disorder. The Veteran filed a notice of disagreement, and the RO issued a statement of the case in August 2008. As neither a substantive appeal nor additional evidence was submitted within 60 days of the August 2008 statement of the case, the March 2007 rating decision became final. See 38 C.F.R. §§ 20.302 (b), 20.1103. The Veteran filed a request to reopen his claim in January 2012. In an October 2012 rating decision, the RO continued the denial, finding that evidence submitted since the prior denial was not new and material. The Veteran filed a notice of disagreement in March 2013, a statement of the case was issued in April 2015, and a Form 9 was received in June 2015. This is the decision currently on appeal. For evidence to be considered new and material in the instant matter, it would have to relate to the existence of a disability and a nexus between the disability and military service. 38 C.F.R. § 3.156 (a). Evidence received since the March 2007 rating decision includes VA treatment records evincing a diagnosis of “other and unspecified sleep apnea,” and lay statements from the Veteran indicating that he experienced symptoms associated with sleep apnea during and after his service in Southwest Asia. For example, in October 2014, the Veteran indicated that his sleep symptoms occurred during service in Iraq. In his June 2015 Form 9, the Veteran reported complaining about difficulty sleeping since returning from his deployment to Iraq in 2005. The Board finds that the VA treatment records and lay statements, taken together, are new and relate to unestablished facts necessary to substantiate the claim, namely, the existence of a present disability and a nexus between that disability and military service. The Veteran’s lay statements suggest a potential nexus between his diagnosed sleep apnea and service in Southwest Asia, thus invoking the issue of presumptive service connection for an a medically unexplained chronic multi-symptom illness. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008) (while asserting a new theory of entitlement to service connection is considered a claim to reopen, evidence supporting a new theory of entitlement can be new and material evidence). Considering the foregoing, the Board finds that new and material evidence has been submitted, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Shade, 24 Vet. App. at 118. REASONS FOR REMAND The Veteran has not been afforded a VA examination to determine the etiology of his diagnosed sleep apnea. However, he has presented evidence that his sleep apnea is due to factors resulting from service in Southwest Asia. VA’s duty to assist includes providing a medical examination when there is (1) competent evidence of diagnosed disability or symptoms of disability, (2) evidence of an event, injury or disease in service, or a disease during the pertinent presumptive period, and (3) an indication that the claimed disability may be associated with the in-service event, injury, or disease. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). VA is required to address all issues reasonably raised by the claimant or the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). A diagnosis of sleep apnea does not preclude consideration of presumptive service connection under 38 C.F.R. § 3.317 (a)(2)(ii) for a medically unexplained chronic multi-symptom illness. See Barnett v. McDonald, No. 16-0646, 2016 U.S. App. Vet. Claims LEXIS 1809, at *9-10 (2016). The Board also finds that the Veteran has presented credible evidence of a diagnosed disability, an occurrence of such disability within a statutory presumptive period, and an indication that the claimed disability may be associated with a period of active duty service. See 38 C.F.R. § 5103A, McLendon, 20 Vet. App. at 83-86. Accordingly, a VA examination is necessary. The Veteran receives VA medical treatment for the disability on appeal; therefore, any outstanding, relevant treatment records should be procured. This matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2018 to the Present. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s diagnosed sleep apnea. The claims file, including a copy of this remand, should be made available to the examiner for review, and the examination report should reflect that such review was completed. The examiner is asked to opine on the following: a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea had its onset during active duty service or is otherwise etiologically related to such service, to include as due to a medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia. The examination report must include a complete rationale for all opinions expressed. The examiner should consider all pertinent evidence, to include the Veteran’s contentions that his disability is related to service in Southwest Asia. If the Veteran’s sleep apnea is determined not the result from a medically unexplained chronic multi-symptom illness, the examiner should explain his/her rationale supporting that conclusion. 3. Thereafter, review the expanded record and readjudicate the claim. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. After allowing an appropriate period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel