Citation Nr: 18145896 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-10 493 DATE: October 30, 2018 ORDER The request to reopen the claim of service connection for a respiratory disability is granted. REMANDED Entitlement to service connection for a respiratory disability, to include bronchitis, sinusitis, allergic rhinitis, deviated septum, and nasal turbinate hypertrophy, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a fractured tooth (number 9), loss of teeth is remanded. FINDING OF FACT 1. A March 2002 rating decision denied service connection for a respiratory disability. The Veteran did not appeal the decision and he did not submit additional evidence within a year after the decision. Therefore, the decision is final. 2. Evidence received since the March 2002 rating decision is relevant and probative as to the issues of service connection for a respiratory disability. CONCLUSIONS OF LAW 1. The March 2002 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the March 2002 rating decision, which denied service connection for a respiratory disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1996 to March 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and March 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran requested a Board hearing at a local office. In April 2015, the veteran verbally elected instead to appear at a personal hearing before a Decision Review Officer (DRO). In May 2017, the Board received written confirmation of the withdrawal of the Board hearing request from the Veteran’s representative. See 38 C.F.R. § 20.704(e) (withdrawal of hearing request). As such, the hearing request is deemed withdrawn. The Board notes that the Veteran contends that his claim for a dental disability related to trauma of the teeth is intertwined with an injury that caused his temporomandibular joint disorder (TMJ). However, as TMJ is not a dental disability, the Board has not recharacterized the Veteran’s claim to include TMJ. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran is invited to submit a separate claim for TMJ. The request to reopen the claim for a respiratory disability is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (2012). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108 (2012). “New” evidence means existing evidence not previously submitted to agency decision-makers. “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) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for a respiratory disability was initially denied in an August 2000 rating decision on the basis that there was no current diagnosis. While the Veteran filed a notice of disagreement, he did not perfect his appeal or submit material evidence within a year of the decision, and the decision therefore became final. In March 2002, the Veteran’s claim of service connection for a respiratory disability was reconsidered under the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The claim was again denied on the basis that there was no current diagnosis. The Veteran was informed of the decision but he did not appeal or submit material evidence within a year of the decision, and the decision therefore became final. The evidence of record at the time of the March 2002 rating decision consisted of service treatment records (STRs) and VA treatment records through May 2001. Since that time, VA and private records were obtained, wherein the providers diagnosed the Veteran with bronchitis, rhinitis, sinusitis, and nasal turbinate hypertrophy (June 2004, June 2009, April 2010, March 2014, April 2014). This evidence is clearly “new,” because it postdates the March 2002 rating decision, and is also “material,” because it cures an evidentiary defect which existed at the time of the prior denial, the lack of a current diagnosis. Consequently, the issue of service connection for a respiratory disability may be reopened. REASONS FOR REMAND The Board finds that further development and adjudication is necessary to comply with VA's duty to assist the Veteran to obtain evidence needed to substantiate his claim. 1. Entitlement to a respiratory disability is remanded. The Veteran contends that his respiratory disability is related to an in-service training accident in 1999. See November 2013 VA treatment record. Specifically, the Veteran reported that “back in 1999 and during a training exercise in Bridgeport, California Mountain Warfare Training Center (MWTC) I sustained injuries during training in a mountainous region at which I fell and landed on my face, suffering a concussion, brocken [sic] teeth, lacerated lip, brocken [sic] nose and injuries to my head. From this point on, I have had respiratory issues, issue's [sic] with breathing during day and night. From that point on, I have several conditions in relations [sic] to this training accident, and in relationship to this information as requested by the VA, I have for the past 15 years been suffering from headaches, sleep apnea, trouble with respiratory, sleeplessness, etc.” See March 2014 correspondence In this regard, the Veteran has undergone three VA and private respiratory examinations wherein the examiners diagnosed the Veteran with bronchitis, rhinitis, sinusitis, nasal turbinate hypertrophy, and a deviated septum, but they provided no opinion relating to the Veteran's respiratory disability. See January 2014 VA examination; April 2014 Disability Benefits Questionnaire (DBQ); March 2015 DBQ. As such, remand for a new VA examination is necessary. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea not only is related to an in-service training accident in 1999, as described above, but also secondary to his service-connected disabilities. See February 2015 correspondence. In this regard, D.M. submitted a buddy statement corroborating the Veteran’s “remarkably loud” in-service snoring that was “attributed to some injury incurred while at Camp Lejeune.” See April 2015 Buddy Statement. Further, the Veteran has undergone three sleep apnea examinations, but they are inadequate. A February 2014 VA examiner opined that the Veteran's sleep apnea is not secondary to his nonservice-connected deviated septum, but did not provide an opinion on direct service connection or service connection secondary to the Veterans’ service-connected disabilities; an April 2014 private examiner provide a diagnosis of obstructive sleep apnea, but did not provide an opinion; and a March 2015 VA examiner opined that there is “no correlation between his nasal trauma and development of sleep apnea,” but did not provide an opinion on secondary service connection. As such, remand for a new VA examination is necessary. See Stefl, 21 Vet. App. 120 (2007); El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). 3. Entitlement to service connection for dental disability claimed as fractured tooth #9, loss of teeth, is remanded. The Veteran contends that his dental disability is related to the above described 1999 in-service training accident. See November 2013 VA treatment record; March 2014 correspondence. In this regard, August 1999 and September 1999 service treatment records indicate the Veteran incurred physical and dental injuries from a fall while training. However, the Board’s review of the record indicates that while there are service treatment records associated with the file, they do not contain dental records. Also, given the lack of follow up treatment for these injuries in the service treatment records which are on file, it is unclear whether the record contains a complete copy of the Veteran’s service treatment records. Any outstanding service treatment records pertaining to physical and dental care must therefore be associated with the file upon remand. Further, the December 2013 VA and April 2014 private examinations are inadequate as the VA examiner did not review the record and based his opinion solely on the reported history, exam, and radiograph; the private examiner did not provide a diagnosis or an opinion on whether the Veteran’s loss of teeth is directly related to active service. As such, remand for a new VA examination is necessary. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain copies of VA treatment records for the Veteran’s disabilities since May 2015. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record. 2. The AOJ should request the any outstanding service treatment records regarding both medical and dental treatment. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that those records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file 3. After the above development has been completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of all diagnosed respiratory disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify all respiratory disabilities diagnosed during the appeal period. In so doing, it should be noted that the record contains diagnoses of bronchitis, sinusitis, allergic rhinitis, deviated septum, and nasal turbinate hypertrophy. (b) Is it at least as likely as not (a 50 percent or greater probability) that the any diagnosed respiratory disability was incurred in or related to his active service? The examiner should address, as described above, the diagnoses of bronchitis, sinusitis, allergic rhinitis, deviated septum, and nasal turbinate hypertrophy. A full rationale for all opinions rendered must be provided. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. 4. After the development in (10 and (2) above has been completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of the Veteran’s sleep disorder. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify any diagnosed sleep disorder during the appeal period. In so doing, it should be noted that the record contains a diagnosis of obstructive sleep apnea. (b) Is it at least as likely as not (a 50 percent or greater probability) that the diagnosed sleep apnea was incurred in or related to his active service? (c) Is it at least as likely as not (50 percent or greater probability) that the diagnosed sleep apnea was either caused or aggravated by the Veteran’s service-connected disabilities. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. A full rationale for all opinions rendered must be provided. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. 5. After the development in (1) and (2) above has been completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of all diagnosed dental disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify all dental disabilities diagnosed during the appeal period. In so doing, it should be noted that the record contains diagnoses of a fractured tooth (number 9) and loss of teeth. (b) Is it at least as likely as not (a 50 percent or greater probability) that the any diagnosed oral disability was incurred in or related to his active service? The examiner should address, as described above, the diagnoses of fractured tooth (number 9) and loss of teeth. A full rationale for all opinions rendered must be provided. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. 6. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel