Citation Nr: 18150888 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 18-01 941 DATE: November 16, 2018 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for a coccyx bone disorder is granted. New and material evidence having been received, the petition to reopen the claim for service connection for a right eye disorder is granted. New and material evidence having been received, the petition to reopen the claim for service connection for sinusitis is granted. REMANDED Entitlement to service connection for a coccyx bone disorder is remanded. Entitlement to service connection for a right eye disorder is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. An unappealed March 2012 rating decision denied the Veteran’s claims of entitlement to service connection for a coccyx bone disorder, right eye disorder, and sinusitis. 2. The evidence added to the record since the March 2012 rating decision is neither cumulative nor redundant of the evidence of record at the time of the decision, and it raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection a coccyx bone disorder, right eye disorder, and sinusitis. CONCLUSIONS OF LAW 1. The March 2012 rating decision that denied the Veteran’s claims of entitlement to service connection for a coccyx bone disorder, right eye disorder, and sinusitis, is final. 38 U.S.C. § 7105; 20.1104. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for a coccyx bone disorder, right eye disorder, and sinusitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to April 1984, from March 2005 to August 2006, from June 2007 to May 2008, from September 2011 to September 2012, and from February 2013 to February 2014. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold for the reopening of claims. The Court of Appeals for Veterans Claims (Court) noted that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, does not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board finds new and material evidence sufficient to reopen the Veteran’s claims of service connection for a coccyx bone disorder, right eye disorder, and sinusitis. A March 2012 Board decision denied the Veteran’s claims for service connection for a coccyx bone disorder, right eye disorder, and sinusitis because the RO noted the Veteran failed to attend his VA examinations and found there was no medical evidence to support his claims. The Veteran did not appeal the denial, nor did he submit new and material evidence within one year of the decision. As such, the March 2012 decision became final. Since the last final denial, VA has received additional lay statements, service treatment records, and VA examinations. This additional evidence is not cumulative in nature and suggests that his disorders may have been incurred in service. The Veteran’s statements are presumed credible for the limited purpose of reopening the claim, and, thus, raise a reasonable possibility of substantiating his claims for service connection. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). REASONS FOR REMAND Having reopened the claims the Board finds that further development is warranted. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. A review of the Veteran’s claims file reveals there are missing VA treatment records. Notably, in the Veteran’s March 2015 VA 21-526EZ, he indicated he was receiving treatment at the Panama City VA Outpatient Clinic from 2014 through the present. However, there are no available VA treatment records in the Veteran’s claims file to review. As there appear to be outstanding VA treatment records in VA’s constructive possession, the claim must be remanded in order to obtain and associate the records to the Veteran’s file. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (c); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board notes the Veteran received VA examinations in August 2015. However, because it appears the record is incomplete insofar as there are missing VA treatment records, the Board finds the examiners’ opinions may have been based on incomplete and/or incorrect facts. See Reonal v. Brown, 5 Vet. App. 458 (1993). Thus, in consideration of any additional evidence received, a remand is required to obtain a new opinion. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). The matters are REMANDED for the following action: 1. Contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, who treated the Veteran for his claimed disabilities. After obtaining authorizations from the Veteran, attempts to obtain pertinent private treatment records must be made, if any. If any records are not available, the Veteran should be notified. Regardless of whether the Veteran responds, all outstanding VA treatment records should be obtained, including the Panama City VA Outpatient Clinic. If possible, the Veteran himself should submit any pertinent new evidence regarding the conditions at issue in order to expedite the claim. 2. After obtaining the above records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed coccyx bone disorder. The examiner must identify any disorder of the coccyx bone. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. A rationale for all opinions expressed should be provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed right eye disorder. The examiner must identify all eye disorders. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. A rationale for all opinions expressed should be provided. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed sinusitis. The examiner must identify all sinus disorders. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. A rationale for all opinions expressed should be provided. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed obstructive sleep apnea. The examiner must identify whether the Veteran has a current diagnosis of sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. A rationale for all opinions expressed should be provided. (Continued on the next page)   6. Thereafter, the remaining issues on appeal should be readjudicated. If any benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case and provide the appropriate opportunity to respond, before returning the case to the Board, if otherwise in order. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kettler, Richard