Citation Nr: 18149548 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-47 579 DATE: November 9, 2018 ORDER The appeal to reopen the claim for service connection for sleep apnea is granted and the claim is reopened. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable rating for hallux valgus of the left foot prior to May 28, 2015, and a rating in excess of 10 percent on and after October 1, 2015, is remanded. FINDING OF FACT In an October 2012 final rating decision, the Veteran was denied service connection for sleep apnea; the evidence associated with the claims file subsequent to the final rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea, is not cumulative or redundant of evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from April 1982 to August 1992. Following the issuance of the December 2017 Supplemental Statement of the Case, additional VA treatment records relating to the Veteran’s sleep apnea were associated with the claims file. These records have not been reviewed by the Agency of Original Jurisdiction (AOJ). However, the Veteran’s substantive appeal for sleep apnea was submitted in September 2016. As the Veteran submitted his substantive appeal after February 2, 2013, waiver of the newly submitted evidence is presumed. 38 U.S.C. § 7105 (e)(1) (West 2012). As such, the Board may properly consider the evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c) (2017). New and material evidence to reopen the claim for service connection for sleep apnea Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. Similarly, a decision by the Board is final unless the Chairman of the Board orders reconsideration of the decision. See 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100(a). An 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, VA will reopen the claim and review it on the merits. 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, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s claim for sleep apnea was denied in an October 2012 rating decision because the Veteran’s service treatment records did not indicate sleep apnea in service. The Veteran did not appeal this decision within a year. Therefore, the October 2012 rating decision became final. In May 2013, the Veteran filed a claim for service connection for sleep apnea. Having previously been denied service connection for this condition in a final decision, new and material evidence is required to reopen the claim. The claim was denied in a September 2014 rating decision because new and material evidence had not been submitted. The Veteran timely appealed this rating decision in a September 2014 notice of disagreement. Thus, the September 2014 rating decision did not become final, and the prior final decision is the October 2012 rating decision. Since the prior final decision, the Veteran’s representative submitted a brief in December 2017 with lay statements as to how the Veteran’s sleep apnea is related to his active service. Essentially, the representative asserts that the Veteran’s sleep apnea may be related to his military occupation specialty (MOS) as an avionic systems specialist. The representative indicated that the Veteran’s MOS involved operating avionic systems, which exposed him to vapors or mists. The representative indicated that vapors and mists can irritate the nose, throat and/or lungs and cause central nervous system conditions. These statements are new as they were not of record at the time of the prior final decision. Nor is the evidence cumulative or redundant of any evidence already of record. The statements also speak to a previously unestablished fact, an in-service event or injury to which the Veteran’s current sleep apnea may be linked. As such, the evidence also has a reasonable possibility of substantiating the claim and is also material. As new and material evidence has been received, the low threshold for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for sleep apnea is reopened. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. The claim for entitlement to service connection is remanded. Having reopened the claim for service connection for sleep apnea, the Board finds that remand is necessary. There is no medical opinion of record addressing the etiology of the Veteran’s current sleep apnea. Nor has a VA opinion been sought or a VA examination provided to the Veteran. However, the Board finds that a VA examination and opinion are now warranted. The record reflects a current diagnosis for sleep apnea. The Veteran’s representative has also indicated an in-service event and association between the Veteran’s current sleep apnea and his active service. Yet, lacking a medical opinion linking the Veteran’s sleep apnea to his MOS or active service, the record is insufficient to decide the claim. As such, the Board finds that the low bar of McClendon v. Nicholson, 20 Vet. App. 79 (2006) has been met, and VA’s duty to assist has been triggered. Accordingly, remand is necessary to provide the Veteran a VA examination to determine the nature and etiology of his sleep apnea. 2. The claim for increased ratings for hallux valgus of the left foot is remanded. The Board finds that remand is also necessary regarding the claim for an increased rating for hallux valgus of the left foot. As the Veteran filed his claim for increase in May 2013, the appeal period begins one year prior in May 2012. During the appeal period, the Veteran underwent a VA examination in June 2014 for his left foot condition. The examination report indicates that the Veteran has degenerative arthritis of the left foot. Specifically, the examiner indicated that he has arthritis in the distal toes and first metatarsal phalangeal joint of the left foot. The Veteran is also in receipt of a 10 percent rating from October 1, 2015, for his left foot hallux valgus due to operation with resection of metatarsal head. As such, the record suggests that the Veteran has arthritis in the same joint as his service-connected hallux valgus (the metatarsal joint). Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the applicable joint. 38 C.F.R. § 4.71a. The Veteran’s hallux valgus of the left foot is rated under Diagnostic Code 5280, which does not contemplate limitation of motion. As such, a separate rating may be warranted for the Veteran’s arthritis of the left foot. However, the Veteran is not currently service-connected for arthritis of the left foot either directly or secondary to any service-connected disability. Nor is there a medical opinion of record indicating whether the Veteran’s arthritis of the left foot is related to the hallux valgus of his left foot. As such, there is also no medical evidence of record assessing the rating criteria for limitation of motion of the left foot. In the best interest of the Veteran, the Board finds that he should be afforded a new VA examination to determine whether his arthritis of the left foot is part of or secondary to his hallux valgus of the left foot. The Board notes that secondary service connection pertains to disabilities caused (in whole or in part) or aggravated by a service-connected disability. Thus, if the Veteran’s arthritis of the left foot was not caused by his hallux valgus, the examiner must still consider whether his left foot hallux valgus has aggravated his arthritis of the left foot. The Board notes that the term “aggravation” refers to a chronic or permanent worsening of the underlying condition above and beyond its natural progression. Then, if the Veteran’s arthritis of the left foot is related to his service-connected hallux valgus, an applicable Disability Benefits Questionnaire (DBQ) for arthritis should be completed. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of his sleep apnea. For each claim remanded, the claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. Any opinion provided must be accompanied by a rationale. Regarding the Veteran’s claim for sleep apnea, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea was incurred in or is otherwise related to his active service. Importantly, the examiner must account for the statements that the Veteran’s sleep apnea may be linked to his MOS of avionic systems specialist. 2. Schedule the Veteran for a new VA examination for foot conditions. Initially, the examiner is asked to provide an opinion as to whether the Veteran’s arthritis of the left foot (which includes the metatarsal joint) is a symptom of his service-connected disability of hallux valgus of the left foot. If the above answer is negative, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s arthritis of the left foot was caused (in whole or in part) or aggravated (permanently worsened beyond the natural progression) by his service-connected hallux valgus of the left foot. Then, the examiner is asked to complete an examination and DBQ assessing the current severity and manifestations of the Veteran’s arthritis of the left foot. 3. After completing the above actions, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel