Citation Nr: 18150382 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 13-16 630 DATE: November 15, 2018 ORDER New and material evidence has been received sufficient to reopen the issue of entitlement to service connection for a sleep apnea condition. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a sleep apnea condition, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. The Veteran was previously denied entitlement to service connection for a sleep apnea condition in an October 2008 rating decision. The Veteran did not appeal that decision, and new and material evidence was not received within the one-year appeal period. 2. Evidence received since the previous denial of entitlement to service connection for a sleep apnea condition is both new and material. CONCLUSIONS OF LAW 1. The October 2008 rating decision, which denied service connection for a sleep apnea condition, is a final decision. 38 U.S.C. §§ 7103(a) and 7104(a); 38 C.F.R. § 20.1100. 2. The criteria to reopen the issue of entitlement to service connection for a sleep apnea condition based on new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.104, 3.156. REASONS AND BASES FOR FINDING AND CONCLUSIONS Whether new and material evidence has been received sufficient to reopen the issue of entitlement to service connection for a sleep apnea condition An October 2008 rating decision denied entitlement to service connection for a sleep apnea, claimed as secondary to service-connected diabetes mellitus, type II (diabetes). The decision indicated that the evidence of record did not show a connection between his sleep apnea condition and his diabetes, or otherwise with his active duty service, and an April 2008 VA authorized examiner opined that he did not have a “non-diabetic condition that is aggravated by the diabetes.” If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that evidence may be considered new and material if it contributes “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its ratings decision.” Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA must not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead must examine and determine if it could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. As a general matter, service connection for a disability requires (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board must find new and material evidence in order to establish its jurisdiction to review the merits of the previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The Veteran filed a claim to reopen the issue of entitlement to service connection for a sleep apnea condition in August 2010. He also submitted August 2010 private treatment records which indicated that his sleep apnea condition was related to “increased weight/short oropharynx and diabetes.” The Board finds that this evidence is new and material, and that it relates to the etiology of the Veteran’s sleep apnea condition. Therefore, it raises a reasonable possibility of substantiating the claim and the low threshold to reopen the claim has been met. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he is entitled to service connection for a right knee disability, as he suffered an injury during active duty service which led to the condition. The Board finds that a remand is necessary in order to obtain a VA medical examination to determine any current right knee disability, as well as the nature and etiology of any such disability. An October 1989 individual sick slip noted that the Veteran suffered an injury in the line of duty during an Army Reserve physical fitness test (PT) on September 23, 1989, specifically torn cartilage in his right knee. The record further indicates that he underwent surgery on his right knee in October 1989. There is no indication that the AOJ considered this evidence in its prior denials of the Veteran’s claim. An October 2012 private treatment record reflects that the Veteran had a total replacement of his right knee due to localized osteoarthritis of his lower leg, and therefore the record indicates that a current right knee condition exists. In his April 2014 VA Form 9, the Veteran indicated that he also had surgery on his knee in 2000, and that he has experienced consistent symptoms related to his right knee disability since he injured his knee in 1989. However, the Veteran has not been afforded a VA examination in connection with his claim, and there is not sufficient evidence in the record regarding the issue of any nexus between an in-service injury and any current right knee disability. The Board finds that given the evidence of record, remand is therefore necessary in order to afford the Veteran a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for a sleep apnea condition, to include as secondary to diabetes mellitus, type II is remanded. As noted above, the Veteran submitted new and material evidence indicating that his sleep apnea condition is, in part, related to his service-connected diabetes. This evidence conflicts with the April 2008 VA authorized examination which formed the basis of the AOJ’s prior denial; however, the private treatment record does not provide any rationale for the opinion that the condition is related to his diabetes. Accordingly, a new examination is necessary in order to clarify the nature and etiology of the Veteran’s sleep apnea condition, and to resolve any conflict between the diagnoses contained in the evidence of record. See McClendon, supra. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus, type II is remanded. The Veteran contends that he is entitled to service connection for bilateral peripheral neuropathy of the lower extremities, as secondary to his service-connected diabetes. The Board finds that a remand is necessary in order to obtain a VA medical examination to determine any peripheral neuropathy disability, as well as the nature and etiology of any such disability. Although the Veteran was previously afforded a VA examination which addressed his claim, evidence contradicting the examiner’s opinion has been submitted since the examination was conducted, and the evidence of record is unclear as to whether any peripheral neuropathy condition is related to his service-connected diabetes. An August 2010 private treatment record noted that the Veteran experienced pains in his legs with exercise and when sitting down and standing up, as well as numbness in his legs. The treating physician assessed him with peripheral neuropathy, but indicated that it was unclear if the true etiology of his symptoms was vascular or diabetic. The Veteran was afforded a VA authorized examination in connection with his claim in September 2010. The examiner noted his claim that he experienced tingling and numbness in both calves. The examiner conducted a neurological examination and concluded that peripheral nerve involvement was not evident during the examination. The examiner opined that there were no findings of secondary complications related to a neurological system due to diabetes. A November 2010 private medical record indicated that The Veteran had “[i]diopathic (probably secondary to adult metabolic syndrome) polyneuropathy.” A December 2010 VA treatment record noted that he had lower extremity neuropathy, with medicinal treatment recommended by a neurologist. An October 2012 private treatment record indicated that the Veteran had a secondary diagnosis of “polyneuropathy in diabetes (manifestation).” Therefore, the medical evidence of record is unclear as to the nature and etiology of the Veteran’s diagnosed peripheral neuropathy, and remand is necessary in order to afford the Veteran a VA examination. See McClendon, supra. The AOJ should also obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. 2. Schedule the Veteran for an examination with an appropriate examiner in order to determine the nature and etiology of any current right knee disability. The examiner should be provided a copy of the Veteran’s entire claims file for review, including a copy of this remand, and the examination report should indicate that a review was performed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s right knee disability is related to his active duty military service. The examiner should specifically discuss the Veteran’s documented knee injury in October 1989 noted above. The examiner must provide a rationale for all opinions rendered. If the requested opinions cannot be provided without resorting to speculation, the examiner should provide reasons why this is so, and discuss whether the inability to provide the necessary opinion is due to the absence of evidence or the limits of medical and scientific knowledge. 3. Schedule the Veteran for an examination with an appropriate examiner in order to determine the nature and etiology of any current sleep apnea condition. The examiner should be provided a copy of the Veteran’s entire claims file for review, including a copy of this remand, and the examination report should indicate that a review was performed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s sleep apnea condition is related to his active duty military service, to include whether it is caused or aggravated by his service-connected diabetes. All tests and studies deemed necessary should be performed. The examiner should specifically discuss the information presented in the articles identified by the Veteran in his October 2018 Informal Hearing Presentation. The examiner must provide a rationale for all opinions rendered. If the requested opinions cannot be provided without resorting to speculation, the examiner should provide reasons why this is so, and discuss whether the inability to provide the necessary opinion is due to the absence of evidence or the limits of medical and scientific knowledge. 4. Schedule the Veteran for an examination with an appropriate examiner in order to determine the nature and etiology of any current peripheral neuropathy condition. The examiner should be provided a copy of the Veteran’s entire claims file for review, including a copy of this remand, and the examination report should indicate that a review was performed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s bilateral peripheral neuropathy is related to his active duty military service, to whether it is caused or aggravated by his service-connected diabetes. All tests and studies deemed necessary should be performed. The examiner should specifically address the Veteran’s complaints of pain and numbness in his legs. The examiner must provide a rationale for all opinions rendered. If the requested opinions cannot be provided without resorting to speculation, the examiner should provide reasons why this is so, and discuss whether the inability to provide the necessary opinion is due to the absence of evidence or the limits of medical and scientific knowledge. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel