Citation Nr: 18148555 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 14-39 485 DATE: November 8, 2018 ORDER The appeal as to whether new and material evidence has been received to reopen a claim of entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1997 to September 2004. This matter is before the Board of Veteran’s Appeals (Board) on appeal of a November 2013 rating decision by the Department of Veterans Regional Office in Anchorage, Alaska. Application to Reopen 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for obstructive sleep apnea. A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. 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). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant’s claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant’s claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant to submit medical nexus evidence when he has provided new and material evidence as to another missing element). Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310 (b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection for obstructive sleep apnea was denied by a rating decision dated in May 2008. In July 2008, the Veteran submitted written correspondence that may be reasonably construed as a timely Notice of Disagreement (NOD). The matter was readjudicated by a rating dated in January 2009 and the denial of service connection was confirmed and continued. The Veteran expressed continued disagreement with the denial in a Statement in Support of Claim received in February 2009. A Statement of the Case (SOC) was issued in September 2009. A VA Form 9, Appeal to Board of Veterans’ Appeals, was received in November 2009. However, in a Statement in Support of Claim received in September 2012 the Veteran withdrew all pending appeals. As such, the May 2008 rating decision and January 2009became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.204, 20.204. The Veteran filed a claim to reopen his claim for service connection in January 2013. In the November 2013 rating decision on appeal, the regional office (RO) denied the Veteran’s request to reopen the claim because the evidence submitted was not new and material. Evidence associated with the record since the final January 2009 rating decision, relating to the Veteran's claim for entitlement to service connection for sleep apnea, includes a September 2016 brief submitted by the Veteran’s representative citing medical treatises concluding that asthmatic patients are more predisposed to developing obstructive sleep apnea. The Veteran is service connected for asthmatic bronchitis. This evidence of a medical nexus between asthma and sleep apnea is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim, specifically a link between the Veteran’s service-connected asthma and his diagnosed sleep apnea. As such, the evidence raises a reasonable possibility of substantiating the claim, specifically a link between the Veterans sleep apnea and his service-connected asthma. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veterans claim for entitlement to service connection for sleep apnea, and the claim is reopened. 38 C.F.R. § 3.156 (a). 2. Entitlement to service connection for obstructive sleep apnea is remanded. First, on remand, the RO will have an opportunity to adjudicate the reopened claim of service connection for sleep apnea on the merits as this issue was not previously reopened by the RO. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). In June 2008, the Veteran underwent a sleep study for suspected sleep apnea at Pacific Sleep lab. The examiner’s “impressions” were that Veteran had obstructive sleep apnea. During his October 2014 VA follow up treatment, the Veteran reported he was not sleeping well and was awakening every hour. A new sleep study referral was ordered, but not performed. In April 2015, the Veteran requested a referral for a sleep study for sleep apnea. In June 2015, the Veteran underwent another sleep study at Pacific Sleep study at Pacific Sleep Lab. In October 2015, at the VA Sleep Disorder center, the Veteran’s sleep apnea diagnosis was confirmed and he was provided with a continuous positive airway pressure (CPAP) machine. 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 is due to his service, or proximately due to, or aggravated by, his service-connected asthma. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not that the Veteran has sleep apnea that is proximately due to, or chronically aggravated beyond its natural progression by his service-connected asthma. Rationale must be provided for the opinion proffered. In rendering the requested opinion, the examiner must reconcile his or her opinion with the medical treatises cited by the Veteran’s representative in a September 14, 2016 written brief. 2. After the above requested development, and any other development deemed necessary, has been completed, readjudicate the issue on appeal. If the benefit sought remains denied, furnish the Veteran and his   representative with a supplemental statement of the case and an appropriate amount of time for response. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.E. Leary, Associate Counsel