Citation Nr: 18149443 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 17-17 941 DATE: November 9, 2018 ORDER As new and material evidence sufficient to reopen a claim of entitlement to service connection for open angle glaucoma has not been received, the application to reopen this issue is denied. REMANDED Entitlement to service connection for sleep apnea, to include on a secondary basis, is remanded. FINDINGS OF FACT 1. A claim for service connection for open angle glaucoma was previously denied by the Regional Office (RO) in a July 2012 rating decision; the Veteran did not appeal that decision and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed the notice of the determination to the Veteran. 2. Evidence received since the July 2012 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for open angle glaucoma. CONCLUSIONS OF LAW 1. The July 2012 rating decision pertaining to open angle glaucoma is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the July 2012 rating decision is not new and material, and the Veteran’s claim of entitlement to service connection for open angle glaucoma is not reopened. 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 October 1967 to February 1970. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for open angle glaucoma. In a July 2012 rating decision, the RO (in pertinent part) denied the Veteran’s claim for service connection for open angle glaucoma, finding that there was no evidence of any such disability related to service. The Veteran did not appeal this decision, or submit new and material evidence within one year of that decision. The decision was thus final based on the evidence then of record. 38 U.S.C. § 7105. At the time of the July 2012 rating decision, the record included service treatment records, which are silent for complaints or findings of glaucoma. The record also included a May 2008 VA eye examination report that notes a diagnosis of open angle glaucoma. The Veteran submitted an August 2012 notice of disagreement, but did not file a timely substantive appeal to an August 2015 Statement of the Case. In addition, VA has not received or associated with the claims file any relevant official service department records that existed and was not associated with the claims file at the time of the July 2012 decision. Therefore, the July 2012 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. In August 2016, the Veteran filed another claim for service connection for (in pertinent part) open angle glaucoma. Subsequently, the RO denied the claim on both direct and secondary bases. It is not clear whether the RO reopened the previous final decision; however, regardless of the RO’s reopening of the claim or not, the Board must still determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence means existing evidence not previously submitted to VA. 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). In the Veteran’s August 2016 requested to reopen the claim, he included a statement that his glaucoma was secondary to his service-connected diabetes mellitus. The Board acknowledges that the Veteran raised a new theory of entitlement (secondary service connection) to reopen his claim. However, a new theory of entitlement does not, on its face, constitute new and material evidence unless evidence supporting the new theory of entitlement is itself new and material. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); Ashford v. Brown, 10 Vet. App. 120, 123 (1997). Evidence added to the record since the July 2012 denial includes VA medical records and examination reports, dated from 2012 to 2018. Although the additional medical evidence submitted is new, it is not material as it does not show that the Veteran has been diagnosed with open angle glaucoma related to service or service-connected disability. Therefore, none of the evidence associated with the record since July 2012 relates to a previously unestablished fact necessary to substantiate the Veteran’s claim. As such, the Board finds that new and material evidence has not been presented sufficient to reopen the previously denied claim of service connection for open angle glaucoma. REASONS FOR REMAND The Veteran maintains that his sleep apnea is secondary to his service-connected allergic rhinitis. See October 2016 VA Form 21-526EZ. Although a VA medical opinion was obtained in December 2016, the opinion is inadequate for adjudication purposes. Specifically, the examiner did not provide an opinion on aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Therefore, remand for another VA medical opinion is necessary. The matter is REMANDED for the following action: Forward the Veteran’s claims file to an appropriate VA examiner who must review the claims file (to include this remand) and provide an addendum opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected allergic rhinitis, including its treatment, caused the Veteran’s sleep apnea or aggravated the sleep apnea. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). If the examiner determines that the requested opinion may not be provided without a physical examination of the Veteran, then such should be scheduled. A complete rationale must be provided for all opinions presented. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.R.Fletcher, Counsel