Citation Nr: 18151721 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 17-00 562 DATE: November 20, 2018 ORDER As new and material evidence has been received, the claim of entitlement to service connection for sleep apnea is reopened. As new and material evidence has been received, the claim of entitlement to service connection for status post right eye pterygium surgery (hereinafter “right eye disorder”) is reopened. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right eye disorder is remanded. Entitlement to service connection for right knee disability, to include as due to left knee disability and/or secondary to service-connected lumbar spine disability, is remanded. Entitlement to service connection for left knee disability, to include as secondary to service-connected lumbar spine disability, is remanded. FINDINGS OF FACT 1. In an August 2013 VA rating decision, the claim for entitlement to service connection for sleep apnea was denied. 2. Evidence received since the August 2013 rating decision denying service connection for sleep apnea is not cumulative or redundant and raises the possibility of substantiating the claim. 3. In a July 2007 VA rating decision, the claim for entitlement to service connection for a right eye disorder was denied. 4. Evidence received since the July 2007 VA rating decision denying service connection for a right eye disorder is not cumulative or redundant and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2013 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.203, 20.1103 (2018). 2. New and material evidence has been received since the August 2013 VA rating decision to reopen the claim for service connection for sleep apnea. 38 U.S.C. §§ 1110, 1131, 5108, 7104 (2012); 38 C.F.R. §§ 3.156, 3.303 (2018). 3. The July 2007 VA rating decision denying service connection for a right eye disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.203, 20.1103. 4. New and material evidence has been received since the July 2007 VA rating decision to reopen the claim for service connection for a right eye disorder. 38 U.S.C. §§ 1110, 1131, 5108, 7104; 38 C.F.R. §§ 3.156, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1985 to September 2006. Before reaching the merits of the claims for sleep apnea and right eye disorder, the Board must first determine whether new and material evidence has been received to reopen these previously denied claims. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized these issues accordingly. In the December 2016 substantive appeal, VA Form 9, the Veteran requested a video conference hearing before the Board. The Veteran’s request to withdraw his hearing request was received in November 2017. With regard to the issue of service connection for a left knee disability, the Veteran filed a timely substantive appeal in December 2016 in response to the December 2016 statement of the case (SOC). This issue was not certified to the Board, but by treating a claim as if it is part of a timely filed substantive appeal, VA effectively waives all objections to the procedural adequacy of the appeal with respect to that issue. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). In the March 2016 VA Form 21-526, the Veteran requested entitlement to service connection for bilateral eye injuries. The issue of service connection for a left eye disorder has not been adjudicated by the Agency of Original Jurisdiction (AOJ). It would violate due process for the Board to take jurisdiction without an initial determination by the AOJ. Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2018). New and Material The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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 (Fed. Cir. 2000). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for sleep apnea In November 2012, the Veteran requested service connection for sleep apnea. In an August 2013 VA rating decision, service connection for sleep apnea was denied on the basis that the condition was not incurred in or caused by service. The Veteran was notified of this action and of his appellate rights, but did not file a timely Notice of Disagreement or submit new and material evidence within a year thereafter. Therefore, the August 2013 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. Evidence received since the August 2013 VA rating decision includes a September 2015 statement from the Veteran’s spouse in which she reported that in or around June 2000, the Veteran began to complain of not sleeping well and feeling exhausted during the day. She further reported that he snored at night and would stop breathing for a bit, whereby he would wake up gasping for breath. Similarly, in a March 2016 Notice of Disagreement (NOD), the Veteran reported that while in service, he had symptoms of sleep apnea and was referred for treatment, but was unable to follow through with treatment as he was in the process of separating from the military. The Board recognizes that the Veteran and his wife are competent to report the onset of symptoms surrounding the onset of his disability. Furthermore, the evidence is presumed credible for the purpose of reopening the claim. Therefore, the Board finds that these statements are new and material to the element of establishing an in-service occurrence, which was not established at the time of the August 2013 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303. 2. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a right eye disorder In January 2007, the Veteran requested service connection for a right eye disorder. In a July 2007 VA rating decision, service connection for a right eye disorder was denied on the basis that there was no current residual or disability resulting from a 1992 in-service corneal abrasion to the right eye with removal of a foreign body and/or a September 1995 in-service removal of a pterygium. The Veteran was notified of this action and of his appellate rights, but did not file a timely Notice of Disagreement or submit new and material evidence within a year thereafter. Therefore, the July 2007 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. Evidence received since the July 2007 VA rating decision includes a May 2016 VA examination for eye conditions in which the examiner rendered current diagnoses of bilateral diabetic retinopathy and right eye pterygium. The Board finds that this evidence is new and material to the element of establishing a current disability, which was not established at the time of the August 2013 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea With regard to the merits of the Veteran’s claim for sleep apnea, the Board notes that the Veteran was afforded a VA examination in November 2015 in which the examiner found that the Veteran’s sleep apnea was less likely than not related to service. However, the Board finds the opinion inadequate for adjudicating the Veteran’s claim due to the examiner’s reliance on the absence of the Veteran’s treatment for sleep apnea while in service and failure to consider the lay statements of record, as discussed above. Therefore, the Board finds an additional VA medical opinion is warranted to determine the etiology of the Veteran’s sleep apnea disorder. 2. Entitlement to service connection for a right eye disorder The Veteran is seeking to reopen his claim of service connection for a right eye disability contending that the condition was caused by his in-service pterygium removal. As discussed above, the May 2016 VA examiner rendered current diagnoses of bilateral diabetic retinopathy and right eye pterygium. While a medical opinion was provided, it was not supported by an adequate rationale. As such, an addendum medical opinion is necessary before the Board can properly adjudicate the Veteran’s claim. 3. Entitlement to service connection for right knee disability, to include as due to left knee disability and/or secondary to service-connected lumbar spine disability 4. Entitlement to service connection for left knee disability, to include as secondary to service-connected lumbar spine disability Concerning the Veteran’s right and left knee disabilities, a November 2015 VA examination diagnosed the Veteran with left knee patellofemoral pain syndrome, while a January 2016 VA examination diagnosed the Veteran with the same condition, bilaterally. Both examinations found that the Veteran’s right and left knee conditions were less likely than not related to service; however, the examinations are inadequate as neither examiner supported their conclusions with adequate medical rationale. In addition, adequate opinion regarding service connection on a secondary basis has not been provided. In light of the above, additional opinions are warranted to determine the etiology of the Veteran’s bilateral knee disabilities. Moreover, as the Veteran reported in a March 2016 NOD that both his VA and private physician suggested that his service-connected lumbar spine disability may have caused his bilateral knee problems, efforts should be made to retrieve any outstanding VA and private treatment records relevant to these claims on appeal. Accordingly, the matters are REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private treatment facilities or providers relevant to his reported treatment for right and left knee disabilities, to include from Carolina Orthopedics, and provide him with the appropriate release forms. Then, make appropriate efforts to obtain any outstanding records so authorized for release from any facility identified by the Veteran. Also, obtain and associate with the claims file all outstanding VA treatment records dated since February 2017. If these records cannot be located, the AOJ must specifically document the attempts made to locate them and notify the Veteran. 2. Then, return the Veteran’s claims file to the examiner who conducted the November 2015 VA examination for sleep apnea so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: Lay evidence of in-service symptomatology pertinent to sleep apnea, as noted by the Veteran’s spouse in a September 2015 statement and by the Veteran in the March 2016 NOD. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea began during active service or is related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Return the Veteran’s claims file to the examiner who conducted the May 2016 VA examination for eye conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current right eye disorder began during active service or is related to an incident of service, to include a corneal abrasion to the right eye with removal of a foreign body in 1992 and/or removal of a pterygium in September 1995. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Return the Veteran’s claims file to the examiner who conducted the January 2016 VA examination for knee and lower leg conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following for the right knee disability: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current right knee disability began during active service or is related to an incident of service. (b.) Whether it is at least as likely as not that the Veteran’s right knee disability was proximately due to or the result of his service-connected lumbar spine disability. (c.) Whether it is at least as likely as not that the Veteran’s right knee disability was aggravated beyond its natural progression by his service-connected lumbar spine disability. The examiner must opine as to the following for the left knee disability: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current left knee disability began during active service or is related to an incident of service. (b.) Whether it is at least as likely as not that the Veteran’s left knee disability was proximately due to or the result of his service-connected lumbar spine disability. (c.) Whether it is at least as likely as not that the Veteran’s left knee disability was aggravated beyond its natural progression by his service-connected lumbar spine disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Then, review the examination reports and medical opinions to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 6. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel