Citation Nr: 18152785 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 18-04 899 DATE: November 26, 2018 ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for sleep apnea is granted. New and material evidence having been received, the appeal to reopen the claim for service connection for a left shoulder disability is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a left shoulder disability is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued in December 2015, the Veteran was denied service connection for sleep apnea. 2. The evidence associated with the claims file subsequent to the December 2015 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. 3. In an unappealed rating decision issued in December 2002, the Veteran was denied service connection for instability of the left shoulder. 4. The evidence associated with the claims file subsequent to the December 2002 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for instability of the left shoulder, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder instability. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from July 1979 to July 1999. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. Similarly, a decision by the Board is final unless the Chairman of the Board orders reconsideration of the decision. See 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100(a). An 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, VA will reopen the claim and review it on the merits. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that 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 (2000). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Whether new and material evidence has been received to reopen the claim for service connection for sleep apnea With respect to the Veteran’s claim for sleep apnea, the Board notes that the RO previously denied a claim of service connection for sleep apnea in a December 2015 rating decision, which the Veteran did not appeal. In April 2017, the Veteran filed another claim for service connection for sleep apnea, which was denied in the August 2017 rating decision currently on appeal. As the Veteran is seeking service connection for a condition previously denied in a prior final decision, the Veteran’s current claim is not a “new” claim. As such, new and material evidence is required in order for the Board to consider the substantive merits of the claim for service connection for sleep apnea. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). As noted, the Veteran was denied service connection for sleep apnea in a December 2015 rating decision. The RO denied service connection because the evidence of record did not indicate an in-service incurrence. The Veteran did not appeal this rating decision or submit new and material evidence within a year of the decision. As such, the December 2015 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Since the December 2015 rating decision, the Veteran stated in his August 2017 notice of disagreement that he believes his sleep apnea was undiagnosed while in service. He asserts that while he served, he was constantly tired during the day due to not resting at night. These statements are new as they were not of record or considered in the December 2015 rating decision. While the Veteran underwent a VA examination for sleep apnea in December 2015 prior to the December 2015 rating decision, the examiner did not assess or notate any reports of sleep issues in service in either the Disability Benefits Questionnaire or corresponding medical opinion. As such, the statements are new. Nor is the evidence cumulative or redundant of any evidence already of record. The Veteran’s statements also speak to a previously unestablished fact, an in-service incurrence, and have a reasonable possibility of substantiating the claim for service connection for sleep apnea. Hence, the low threshold for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for sleep apnea is reopened. 38 C.F.R. § 3.156(a). 2. Whether new and material evidence has been received to reopen the claim for service connection for a left shoulder instability, to include as secondary to the service-connected right shoulder disability The Veteran was denied service connection for instability of the left shoulder in November 1999 and December 2002 rating decisions. In November 1999, the claim was denied because while there was evidence of treatment for left shoulder instability in service, there was no evidence of permanent residuals. Additionally, the Veteran had failed to report to a scheduled VA examination for the condition. The Veteran did not appeal this rating decision or submit new and material evidence within a year of the decision. As such, the November 1999 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In December 2002, the RO denied the claim due to lack of evidence of a current disability. The Veteran did not appeal this rating decision or submit new and material evidence within a year of the decision. As such, the December 2002 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In April 2017, the Veteran filed a claim for instability of the left shoulder as secondary to his service-connected degenerative arthritis of the right shoulder. The Board acknowledges that the April 2017 claim encompasses a different etiological theory than the June 2002 claim, i.e. secondary service connection instead of direct service connection. However, the Board notes that the Court has held that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 199 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). While a new theory of entitlement cannot be the basis to reopen a claim, if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In other words, if there is new and material evidence to support the new etiological theory, then the claim may be reopened based on the new etiological theory. Since the December 2002 rating decision, treatment reports associated with the claims file indicate left shoulder pain. The Veteran also underwent a VA examination for shoulder conditions in August 2015 and July 2017. This evidence is new as it was not of record or considered at the time of the prior final decision. The Board notes that the evidence only reflects complaints of left shoulder pain without any additional diagnoses. However, VA recognizes pain as a disability where there is also functional impairment. See Saunders v. Wilkie, ___ F. 3d ___, No. 2017-1466 (Fed. Cir. April 3, 2018). The August 2015 VA examination was performed in regard to the Veteran’s right shoulder. However, in rating disabilities of the musculoskeletal system, the opposite “undamaged” joint is also examined where possible. Therefore, the August 2015 VA examiner also assessed the Veteran’s left shoulder. Having done so, the examiner indicated that the Veteran does have functional impairment of the left shoulder due to pain. As such, this evidence is new and material as it is not cumulative or redundant of any evidence already of record and also speaks to a previously unestablished fact. As such, the evidence has a reasonable possibility of substantiating the claim for service connection for instability of the left shoulder. Hence, the low threshold for reopening has been met. Shade v. Shinseki, 24 Vet. App. at 110. Accordingly, the claim of entitlement to service connection for left shoulder instability is reopened. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Board finds that remand is necessary for a new VA opinion to assess the etiology of the condition. As noted, the Veteran was afforded a VA examination for sleep apnea in December 2015. The examiner noted that the Veteran reported issues with coughing, throat and sinuses due to service in Southwest Asia. The examiner opined that the Veteran’s sinus, coughing, and throat issues were documented in his service treatment records between October 1985 and December 1986. The examiner indicated that the Veteran was in Kuwait after August 1990 and that it is therefore less likely than not that the diagnosis of sleep apnea is related to his service in Southwest Asia. However, the Board does not find this opinion to be adequate. The examiner only considered whether the Veteran’s sleep apnea was related to his service in Southwest Asia but did not address whether it was related to any of the remainder of the Veteran’s service. Nor did the examiner adequately explain why the Veteran’s sleep apnea is not related to his service in Southwest Asia. Additionally, since this examination, the Veteran has indicated, as noted, that he believes he had sleep apnea in service as he was often tired. As such, remand is necessary for an adequate VA opinion that addresses the Veteran’s sinus, cough and throat issues in service and also considers his lay statements. 2. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected degenerative arthritis of the right shoulder, is remanded. The Veteran asserts that his left shoulder disability is secondary to his right shoulder disability. Specifically, he asserts that he favors his left shoulder due to his right shoulder disability. See August 2017 Notice of Disagreement. As noted, pain that causes functional impairment is sufficient for VA purposes per the Court’s holding in Saunders v. Wilkie, ___ F. 3d ___, No. 2017-1466 (Fed. Cir. April 3, 2018). The August 2015 VA examiner noted that left shoulder pain caused functional loss, which he described in terms of 140 degrees of flexion and abduction. Notably, at that time the Veteran worked in a steam plant and had to lift bags of salt and clean the boiler. See August 2015 VA Examination. The Veteran underwent a VA examination specifically for his left shoulder in July 2017. The examiner found no objective evidence of pain, functional impairment, or instability. He stated that the Veteran did not report any functional loss or functional impairment, but elsewhere in the report he acknowledged the Veteran’s report of sharp pain whenever he tried to lift objects. Specifically, the Veteran commented that “he cannot lift his arm above shoulder level for long periods of time due to the pain.” As this examination report is inherently contradictory, remand is necessary to obtain clarification. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with an appropriate examiner to assess the nature and etiology of his sleep apnea. The claims file must be made available to the examiner, and the examiner should state in the opinion that review of the electronic record was accomplished. The examiner must consider the Veteran’s lay statements and any opinion provided must be accompanied by a rationale. The examiner is asked to 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 was incurred in or is otherwise related to his active service, which includes but is not limited to his service in Southwest Asia. Importantly, the examiner must also consider the Veteran’s lay statements that he was often tired in service due to an inability to sleep. 2. Schedule an appropriate VA examination to determine the nature, manifestations, and etiology of any left shoulder disability. A complete copy of the claims file must be provided to the examiner for review. Any clinically indicated testing and/or consultations must be accomplished. The examiner should address the following: (a) Please list all currently diagnosed left shoulder disabilities. If the Veteran does not have any left shoulder disabilities, the examiner must opine whether the Veteran has left shoulder pain resulting in functional impairment. The examiner should consider the August 2015 VA examiner’s finding that left shoulder pain caused functional loss, which he equated to 140 degrees of flexion and abduction. (b) For each disability listed above, or if no disability is diagnosed, for any pain with functional impairment, is it at least as likely as not (50 percent or greater probability) that such disability or pain is caused or aggravated by the Veteran’s service-connected right shoulder disability? The examiner must specifically address the Veteran’s lay statements regarding overuse of the left shoulder as a result of compensating for the service-connected right shoulder disability. A complete rationale must be provided for all opinions expressed, to include separate rationales for causation and aggravation opinions. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel