Citation Nr: 18146800 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 17-67 049 DATE: November 1, 2018 ORDER As new and material evidence has been received, the claim for service connection for sleep apnea is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a final June 2016 rating decision, the RO denied entitlement to service connection for sleep apnea; the Veteran did not submit a Notice of Disagreement, no new and material evidence was submitted within one year of the decision, and the decision became final. 2. The evidence received since the final June 2016 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for sleep apnea. CONCLUSIONS OF LAW 1. The June 2016 rating decision that denied the claim for service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for sleep apnea. 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 April 1979 to February 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. Additionally, 38 C.F.R. § 3.156(b) provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal. See also Bond v. Shinseki, 659 F.3d. 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161 - 62 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a June 2016 rating decision, the RO denied the Veteran’s claim for service connection for sleep apnea because the evidence did not show that the disorder was incurred in or caused by his military service. In June 2016, the Veteran was advised of the rating decision and his appellate rights. The Veteran did not file a NOD. In addition, no new and material evidence pertaining to the Veteran’s claim was received within one year of the June 2016 rating decision. Therefore, the June 2016 rating decision is final. Since the Veteran’s prior final denial in June 2016, the record includes September and December 2017 lay statements from the Veteran stating that his sleep apnea began in the 1980’s, during his active military service. The Board finds that this evidence is new as it was not previously of record and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. The lay statements are presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for sleep apnea is reopened. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. In an April 2004 VA treatment record, the Veteran identified relevant private treatment records. A remand is required to allow VA to obtain authorization and request these records. 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’s sleep apnea due to his military service. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for private medical providers who have treated or diagnosed his sleep apnea, to include Dr. Alfred De Maria. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should address the Veteran’s lay statements. The examiner must provide the rationale for all opinions rendered. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel