Citation Nr: 18150870
Decision Date: 11/16/18	Archive Date: 11/15/18

DOCKET NO. 15-05 349
DATE:	November 16, 2018
ORDER
The application to reopen a claim for service connection for obstructive sleep apnea is denied.
The application to reopen a claim for service connection for erectile dysfunction (ED) is denied.
FINDINGS OF FACT
1. The Veteran had active service from December 1989 to January 1998.
2. In an unappealed July 2010 rating decision, the Regional Office (RO) denied, among other things, service connection for obstructive sleep apnea and ED.
3. The evidence submitted since the July 2010 decision reflected diagnoses of sleep apnea and ED, but does not establish a link between the current diagnoses and service.  
CONCLUSIONS OF LAW
1. The July 2010 RO rating decision, which denied service connection for sleep apnea and ED, is final. 38 U.S.C. § 7105 (2012).
2. The evidence received since the July 2010 rating decision is not new and material; the claim for obstructive sleep apnea is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2017).
3. The evidence received since the July 2010 rating decision is not new and material; the claims for ED is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  “New” evidence means evidence “not previously submitted to agency decisionmakers.”  “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.”  38 C.F.R. § 3.156(a). 
In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1991).  
The RO initially denied a claim for service connection for sleep apnea and ED in July 2010 because there was no evidence that these conditions occurred in service. There was also no evidence that the current diagnoses were related to service. The Veteran did not appeal and that decision became final.
The Veteran applied to reopen both claims, which was denied in August 2013 and forms the basis of this appeal.

Evidence received since the July 2010 decision includes VA treatment records, examination reports, private treatment records, and additional statements from the Veteran. These records reflect current diagnoses of sleep apnea and ED. However, such diagnoses were already of record. The evidence does not show complaints, treatment, or diagnoses of sleep apnea or ED during service. The evidence also does not establish any link between the current diagnoses and the Veteran’s service. 
Without any competent evidence or opinion that the Veteran’s sleep apnea and ED are related to service, none of the newly-submitted medical evidence raises a reasonable possibility of substantiating those claims, and therefore, the evidence is not new and material for purposes of reopening the claims. 
Under these circumstances, the Board concludes that new and material evidence to reopen the claim of entitlement to service connection for sleep apnea and ED has not been received. As such, the appeal is denied.
 
L. HOWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Kokolas, Associate Counsel