Citation Nr: 18149803 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-33 927 DATE: November 14, 2018 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for sleep apnea is reopened. REMANDED The claim of entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In an unappealed rating decision, dated in September 2012, the Regional Office (RO) denied service connection for sleep apnea. 2. The evidence received since the September 2012 rating decision was not previously of record, is not cumulative of other evidence of record, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received since the September 2012 rating decision which denied service connection for sleep apnea; the claim for service connection for sleep apnea is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty between May 1997 and June 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. New and Material Evidence The Veteran asserts that new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for sleep apnea. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” Smith v. West, 12 Vet. App. 312 (1999). If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines “new” as not previously submitted and “material” as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, in Shade, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The evidence of record at the time of the RO’s September 2012 rating decision included the Veteran’s discharge (DD Form 214), which indicated that he served in Iraq between February 2003 and November 2003. The Veteran’s service treatment records, discussed in greater detail, infra, showed that he complained of frequent trouble sleeping, and shortness of breath, wheezing, or problems with wheezing; there were no findings or indications of sleep apnea. At the time of the September 2012 rating decision, there was no evidence to show that the Veteran currently had sleep apnea. The most recent and final denial of this claim was in September 2012. Therefore, the Board must determine if new and material evidence has been received since that time. See 38 U.S.C. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The medical evidence received since the RO’s September 2012 rating decision includes a January 2015 VA sleep apnea disability benefits questionnaire (DBQ), which notes a history of a finding of mild to moderate positional OSA (obstructive sleep apnea) in a May 2013 home sleep study; the DBQ contains a diagnosis of obstructive sleep apnea. This evidence, which was not of record at the time of the September 2012 rating decision, is not cumulative, and is “new” within the meaning of 38 C.F.R. § 3.156. The Board further finds that this evidence is material. The submitted evidence contains current evidence of sleep apnea, which was not of record at the time of the September 2012 rating decision. The Board therefore finds that the submitted evidence is new and material, and that it raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; Shade. The claim is therefore reopened. REASONS FOR REMAND The Veteran contends that his sleep apnea is related to his military service. The Veteran’s service treatment records include a post-deployment medical assessment (PDHA), dated in September 2003, which shows that that the Veteran had a history of difficulty breathing and feeling tired after sleeping. He noted a history of a virus and shortness of breath. A PDHA, dated in November 2003, shows that the Veteran indicated that he had a history of “shortness of breath, wheezing, or problems with wheezing,” and that he denied a history of frequent trouble sleeping. An examination report, dated in February 2004, shows that the Veteran’s nose, sinuses, and mouth and throat, were clinically evaluated as normal. An associated report of medical history shows that the Veteran indicated that he did not have a history of frequent trouble sleeping, and that he did have a history of shortness of breath, with a notation of shortness of breath when running. The Veteran’s separation examination report, dated in May 2004, shows that the Veteran’s nose, sinuses, and mouth and throat, were clinically evaluated as normal. An associated report of medical history shows that the Veteran indicated that he had a history of frequent trouble sleeping, and shortness of breath, with a notation of shortness of breath when running. Post-service VA progress notes show that, beginning in 2011, the Veteran was noted to have possible sleep apnea. In May 2013, he was noted to be using a CPAP (continuous positive airway pressure) machine, following a sleep study that same month. Overall, multiple progress notes also show that the Veteran reported sleep problems in association with psychiatric symptoms that included anger, depression and nightmares (the Board notes that service connection is in effect for disabilities that include posttraumatic stress disorder). See e.g., VA progress notes, dated in 2013. The Veteran was afforded a VA sleep apnea examination in January 2015 and the examiner noted a diagnosis of obstructive sleep apnea, noting an onset of May 2013. The examiner concluded that the Veteran’s sleep apnea is a diagnosed condition, diagnosed in 2013, and that it is less likely to be secondary to Gulf War Syndrome. Unfortunately, the January 2015 VA examiner failed to address the Veteran’s service treatment records showing significant respiratory and sleep related complaints. As such, an addendum opinion should be obtained on remand. The matter is REMANDED for the following action: 1. Request an addendum to the January 2015 VA sleep apnea examination. The claims file should be made available to the examiner. If the January 2015 VA examiner is not available, the claims file should be provided to an appropriate examiner to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should then opine as to whether the Veteran’s sleep apnea more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to his service. Significantly, the examiner should consider the Veteran’s service treatment records showing several respiratory and sleep related complaints, specifically: • a September 2003 PDHA which shows that that the Veteran had a history of difficulty breathing and feeling tired after sleeping. He noted a history of a virus and shortness of breath. • a November 2003 PDHA which shows that the Veteran indicated that he had a history of “shortness of breath, wheezing, or problems with wheezing,” and that he denied a history of frequent trouble sleeping. • the Veteran’s May 2004 separation examination which shows that the Veteran’s nose, sinuses, and mouth and throat, were clinically evaluated as normal as well as an associated report of medical history which shows that the Veteran indicated that he had a history of frequent trouble sleeping, and shortness of breath, with a notation of shortness of breath when running. A complete rationale for the opinion expressed should be provided. 2. Readjudicate the appeal. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel