Citation Nr: 18147585 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 18-14 456 DATE: November 6, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for hypertension is reopened; to this extent only, the Veteran’s appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for sleep apnea is reopened; to this extent only, the Veteran’s appeal is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for left leg sciatica is remanded. Entitlement to service connection for a right leg disability, to include radiculopathy and sciatica, is remanded. FINDINGS OF FACT 1. Service connection for hypertension was denied in a February 2008 rating decision on the basis that there was no current disability. 2. The Veteran did not file a notice of disagreement for the February 2008 rating decision, and that decision became final. 3. Evidence received since the February 2008 rating decision relates to unestablished facts necessary to substantiate the service connection claim for hypertension. 4. Service connection for sleep apnea was denied in an October 2009 rating decision on the basis that there was no evidence that the condition either occurred in or was caused by service. 5. The Veteran did not file a notice of disagreement for the October 2009 rating decision, and that decision became final. 6. Evidence received since the October 2009 rating decision relates to unestablished facts necessary to substantiate the service connection claim for sleep apnea. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the Veteran’s claim for service connection for hypertension is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. New and material evidence has been received, and the Veteran’s claim for service connection for sleep apnea is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1981 to August 2007 This case comes before the Board of Veterans’ Appeals (Board) from May 2017 and November 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO adjudicated the right let issue as a petition to reopen a prior claim. However, the claims file shows that the Veteran continuously prosecuted the original claim after it was denied in October 2016 and February 2017 by asking for reconsideration of the denials. As such, new and material evidence is not required for consideration of the claim. New and Material Evidence A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that 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 is defined as existing 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 claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, 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). 1. Hypertension Service connection for hypertension was initially denied in a February 2008 rating decision. The RO found that there was a diagnosis of hypertension on the March 2007 retirement examination, but indicated that it was made based upon one blood pressure reading. Any elevated blood pressure readings had not been confirmed, and therefore service connection for hypertension was denied because the evidence failed to show a confirmed diagnosis. The Veteran then wrote the RO in November 2008 explaining that he had missed his pre-discharge examination because he was out of the country. He asked that the examination be rescheduled. Accordingly, a VA examination was conducted in March 2009, after which the RO issued a rating decision in June 2009. The RO considered the claim reopened, but denied it on the basis that “the evidence continues to show no diagnosis for this condition which is supported by clinical evidence.” He was notified of the decision by letter in June 2009, which was mailed to the then current mailing address of record. Thereafter, no new evidence or notice of disagreement was received by VA within one year of the issuance of the June 2009 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence received since the June 2009 rating decision includes a March 2009 VA examination and VA treatment records indicating a current diagnosis of hypertension. The evidence is new, as it was not previously considered, and is material, as it pertains to unestablished facts of the claims, i.e., evidence of a current diagnosis of hypertension; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claim is appropriate. 2. Sleep Apnea Service connection for sleep apnea was initially denied in an October 2009 rating decision. The RO found that there was a current diagnosis sleep apnea, but there was no evidence that the condition either occurred in or was caused by service. He was notified of the decision by letter in November 2009, which was mailed to the then current mailing address of record. Thereafter, no new evidence or notice of disagreement was received by VA within one year of the issuance of the October 2009 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence received since the October 2009 rating decision includes private treatment records and a June 2017 statement from the Veteran’s former spouse, who identified herself as a physician’s assistant (PA-C), indicating that the Veteran exhibited symptoms of sleep apnea since at least 1997. The evidence is new, as it was not previously considered, and material, as it pertains to unestablished facts of the claims, i.e., evidence of a current diagnosis of sleep apnea that began during service; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claim is appropriate. REASONS FOR REMAND 1. Hypertension, Sleep Apnea As the Veteran’s medical records establish diagnoses or persistent symptoms of sleep apnea and hypertension, and there is an indication, through assertions of the Veteran, that the disabilities may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of these disabilities. 2. Bilateral Legs The Veteran submitted private treatment records in August 2017 that show a diagnosis of bilateral sciatica which appears more pronounced on the left side. He then received a VA back examination that same month, and the examiner noted that the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. The Board finds that the August 2017 VA examination is inadequate, as it did not address the relevant medical records that show a current diagnosis of bilateral sciatica. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that a remand for a new examination and medical opinion as to the nature and etiology of any diagnosed bilateral leg radiculopathy/sciatica is necessary. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current nature and etiology of his diagnosed hypertension. The examiner should note that there is a current diagnosis of hypertension. The examiner should opine as to whether it is at least as likely as not that the Veteran’s hypertension was incurred in service or within a year of service or is otherwise related to service. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his obstructive sleep apnea. The examiner is asked to opine as to whether it is as least as likely as not that the Veteran’s obstructive sleep apnea had its onset in service or is otherwise the result of an incident in service. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral leg radiculopathy/sciatica. The examiner is asked to opine as to whether it is as least as likely as not that the Veteran’s bilateral leg radiculopathy/sciatica had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not that the Veteran’s bilateral leg radiculopathy/sciatica was caused or aggravated by his residuals of a compression fracture with lumbosacral. If the examiner finds that the Veteran’s bilateral leg radiculopathy/sciatica disability has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel