Citation Nr: 18152434 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-52 323 DATE: November 21, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT 1. An April 2011 rating decision denied service connection for sleep apnea; VA received no appeal or new and material evidence prior to expiration of the appeal period; this decision became final. 2. Evidence received since the April 2011 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for sleep apnea. CONCLUSION OF LAW The April 2011 rating decision denying the claim for service connection for sleep apnea is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from June 1980 to June 2006. A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for sleep apnea. An April 2011 rating decision denied service connection for sleep apnea. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, this decision became final. Evidence received since the April 2011 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for sleep apnea. The new evidence includes a June 2015 private physician statement indicating that the Veteran may have had undiagnosed sleep apnea while on active military service. The evidence is material as it cures a prior evidentiary defect. The low threshold for reopening the claim has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, new and material evidence has been received to reopen the claim. According, the petition to reopen the previously denied claim for service connection for sleep apnea is granted. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. The Board finds that additional development is needed before the Veteran’s claim on appeal can be decided. A December 2010 VA examination noted a diagnosis of sleep apnea, but opined the sleep apnea is less likely as not caused by or a result of military service. The examiner did note that the Veteran had non-specific symptoms while in service that may have been due to undiagnosed sleep apnea. However, no rationale was provided to explain why these non-specific symptoms were not related to the Veteran’s current sleep apnea. In June 2015, a private physician wrote that he reviewed the Veteran’s service treatment records and found a reference to a sleep study which was never performed. The private physician opined that the Veteran may have had undiagnosed sleep apnea while on active military service. This letter does not allow the Board to decide the claim, because it is equivocal and does not provide a definitive nexus between the Veteran’s in-service symptoms and current disability. Given the contrary and equivocal evidence, the Board finds that further development is warranted to provide an adequate medical examination to determine the etiology of the Veteran’s sleep apnea. McLendon v Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any 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.) The examiner must address the December 2010 VA examination and the June 2015 private physician letter. (b.) A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel