Citation Nr: 18155587 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-10 377A DATE: December 4, 2018 ORDER The application to reopen a previously denied claim for service connection for hypertension (HTN) is granted. The application to reopen a previously denied claim for service connection for obstructive sleep apnea (OSA) is granted. The application to reopen a previously denied claim for service connection for diabetes mellitus, type II (DM) is denied. Entitlement to service connection for OSA is granted. Entitlement to service connection for allergic contact dermatitis is dismissed. Entitlement to an initial rating higher than 10 percent for allergic rhinitis with chronic cough is dismissed. Entitlement to an initial rating higher than 30 percent for chronic diarrhea is dismissed. REMANDED Entitlement to service connection for HTN is remanded. Entitlement to service connection for erectile disorder (ED) is remanded. FINDINGS OF FACT 1. In a September 2009 rating decision, the RO denied the Veteran’s petition to reopen his claim for entitlement to service connection for HTN. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received since the September 2009 rating decision relates to the prior basis for the denial and tends to raise a reasonable possibility of substantiating the claim of service connection for HTN. 3. In a September 2009 rating decision, the RO denied the Veteran’s petition to reopen his claim for entitlement to service connection for OSA. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 4. Evidence received since the September 2009 rating decision relates to the prior basis for the denial and tends to raise a reasonable possibility of substantiating the claim of service connection for OSA. 5. In a September 2009 rating decision, the RO denied the Veteran’s petition to reopen his claim for entitlement to service connection for DM. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 6. Evidence received since the September 2009 rating decision is either cumulative or redundant and, by itself or in connection with evidence previously assembled, does not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim of entitlement to service connection for DM. 7. The evidence reflects that the Veteran’s OSA had its onset in service. 8. In an October 2016 letter, prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw his appeal as to the issues of entitlement to service connection for allergic dermatitis, an initial rating higher than 10 percent for allergic rhinitis, and an initial rating higher than 30 percent for chronic diarrhea. CONCLUSIONS OF LAW 1. The September 2009 rating decision that denied the claim of entitlement to service connection for HTN is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The additional evidence received since the September 2009 decision is new and material, and the claim of service connection for HTN is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2009 rating decision that denied the claim of entitlement to service connection for OSA is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 4. The additional evidence received since the September 2009 decision is new and material, and the claim of service connection for OSA is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The September 2009 rating decision that denied the claim of entitlement to service connection for DM is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 6. The additional evidence received since the September 2009 decision is not new and material, and the claim of service connection for DM is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. § 3.303(a). 8. The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issues of entitlement to service connection for allergic dermatitis, initial rating higher than 10 percent for allergic rhinitis, and initial rating higher than 30 percent for chronic diarrhea. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1972 to August 1980, and from January 1981 to September 1993. These matters come before the Board of Veterans Appeals (Board) on appeal from June 2013 and March 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In his April 2015 and May 2016 substantive appeals (via VA Form 9), the Veteran requested a videoconference hearing before a Veterans Law Judge. However, in an October 2016 letter, the Veteran canceled his request for a hearing. As such, the Veteran’s hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (e). The Board notes that additional evidence for the claim for service connection for HTN in the form of a VA examination was added the file after it was certified to the Board. In August 2018, the RO issued a rating decision continuing to deny the claim. While a supplemental statement of the case (SSOC) was not issued, considering the Board’s grant reopening the previously denied claim and remand for additional development, a remand for an SSOC is not necessary. 38 C.F.R. § 20.1304(c). New and Material Evidence Generally, a claim that has been denied in an unappealed 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 that 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for HTN Here, new and material evidence has been received. The Veteran’s claim for service connection for HTN was denied because there was no evidence that the Veteran had a diagnosis of HTN during service or within one year of discharge, or that his current HTN was related to service. To reopen the claim, there would have to be new evidence that related to the basis for the prior denial or the new evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In a September 2009 rating decision, the RO denied the Veteran’s petition to reopen his claim for service connection for HTN. The Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the September 2009 rating decision is final. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the September 2009 rating decision included the Veteran’s service treatment records (STRs) and VA treatment records indicating a diagnosis of HTN. Relevant evidence received more than one year since the September 2009 rating decision includes a December 2017 note from the Veteran’s private physician indicating that the Veteran’s service-connected psychiatric disability may aggravate his HTN, as well as a June 2018 VA examination providing a negative direct nexus opinion. As such, the additional evidence submitted since the September 2009 rating decision is new and material evidence that relates to unestablished facts necessary to substantiate the merits of the claim. Reopening of the claim for service connection for HTN is therefore warranted. 2. Whether new and material evidence has been received to reopen a previously denied claim for OSA Here, new and material evidence has been received. The Veteran’s claim for service connection for OSA was denied because there was no evidence that the Veteran had a diagnosis of OSA that was related to service. To reopen the claim, there would have to be new evidence that related to the basis for the prior denial or the new evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. In a September 2009 rating decision, the RO denied service connection for OSA. The Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the September 2009 rating decision is final. See 38 U.S.C. § 7105(c); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the September 2009 rating decision included the Veteran’s service treatment records (STRs). Relevant evidence received more than one year since the September 2009 rating decision includes an April 2014 letter from a private physician providing a positive nexus opinion. As such, the additional evidence submitted since the September 2009 rating decision is new and material evidence that relates to unestablished facts necessary to substantiate the merits of the claim. Reopening of the claim for service connection for OSA is therefore warranted. 3. Whether new and material evidence has been received to reopen a previously denied claim for DM The Veteran’s claim for service connection for DM was denied because there was no evidence that the Veteran had a diagnosis of DM during service or within one year of discharge, or that his current DM was related to service. To reopen the claim, there would have to be new evidence that related to the basis for the prior denial or the new evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In a September 2009 rating decision, the RO denied reopening a previously denied claim for service connection for DM because there was no evidence that his current DM was related to service, to include Vietnam service, or incurred within one year of discharge. The Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the September 2009 rating decision is final. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the September 2009 rating decision included the Veteran’s service treatment records (STRs), his military personnel records, and VA treatment records documenting a diagnosis of DM in 2005. Relevant evidence received more than one year since the September 2009 rating decision includes post-service VA and private treatment records reflecting continuous diagnosis and treatment for DM. The Board finds that the evidence added to the claims file since the September 2009 rating decision fails to demonstrate, suggest, or raise a reasonable possibility that the Veteran’s DM is related to service or was incurred within one year of discharge from active duty. Indeed, while the VA treatment records reflecting that the Veteran’s DM has worsened are new in that they were not of record at the time of the last final decision, they are cumulative and duplicative of the evidence that were previously considered by the Board, as they document the Veteran’s continuous symptoms and treatment for DM. Notably, the newly received records do not contain any indication or suggestion that the Veteran’s DM is related to or due to service, or was incurred within one year of separation from active duty. As a result, the newly received records are not considered material and sufficient to reopen the previously denied claim and the Secretary’s duty to assist by providing a new medical examination or opinion regarding DM is not triggered. See Shade, 24 Vet. App. at 120. In sum, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection for DM, to include by either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. As new and material evidence has not been received sufficient to reopen the previously denied claim of service connection for DM, the criteria for reopening the claim have not been met. The benefit of the doubt doctrine is not for application because the threshold burden of submitting new and material evidence has not been met. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection 4. Entitlement to service connection for OSA Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). “[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). In this case, the Veteran’s service treatment records (STRs) do not reflect any complaints, treatments, or diagnosis of OSA. An April 2014 letter from a private physician, M.C., documents review of the claims file and the Veteran’s medical records, as well as an in-person examination. M.C. noted that the Veteran weighed 115 pounds when he entered service in 1972 and weighed 145 pounds when he retired in 1993. The Veteran reported that he first knew that he snored while he was on active duty in the Navy because his first wife mentioned snoring; and starting in 1987 his second wife complained that his snoring became progressively worse and he had breathing pauses, especially in the later years. He underwent a sleep study test in November 2012, at which time he was diagnosed with moderate OSA. M.C. observed that he weighed 165 pounds at that time, approximately 20 pounds more than when he retired. Prior to his diagnosis and treatment for OSA, the Veteran reported significant daytime sleepiness and tiredness. M.C. noted that his military occupational specialty was dispersing clerk and personnel office clerk, and that he was deployed once on a ship in 1979. She noted that despite adequate sleep hours during his military career, the Veteran recalled being excessively sleepy. She also noted that he was diagnosed with HTN in 1997 and DM in 2005. Physical examination of the Veteran revealed relative class Ill occlusion end-on anteriorly. There appeared to be a slight crossbite to the left, the soft palate was elongated, and the free edge lying below the level of the tongue rated Mallampati IV. The uvula was large, the tongue volume was relatively large for the space, and the nares flow was limited on the right. She opined that it was very likely, given his predisposing anatomy of elongated soft palate, relatively large tongue, and nasal flow limitation, that the Veteran “may have had at least a mild degree of obstructive sleep apnea at a lower weight” during service. She observed that others’ observation of apneic pauses were not a required symptom of sleep apnea, as most sleep apneics, especially in the early phases, sounded like snorers. She stated that while it was “not possible to state with certainty whether [the Veteran] had sleep apnea while on active duty,” based on her experience with the evolution of the condition, she “believed there was a strong likelihood that [the Veteran] had at least mild Obstructive Sleep Apnea based on his symptoms and anatomy during his time on active duty in the U.S. Navy.” Based on the evidence of record, the Board finds that service connection for OSA is warranted. The Veteran has a current diagnosis of OSA and therefore meets the first prong of service connection. While the STRs do not reflect complaints and treatment of OSA, the Veteran’s first and second wives reported that he snored during service; and his second wife noted breathing pauses during his sleep, which worsened with time. In addition, the Veteran reported that he was excessively sleepy throughout service even with adequate sleep. Further, based on her examination of the Veteran, M.C. opined that “it was very likely, given his predisposing anatomy of elongated soft palate, relatively large tongue, and nasal flow limitation, that the Veteran may have had at least a mild degree of [OSA] at a lower weight” during service. She also opined that based on her experience, she “believed there was a strong likelihood that [the Veteran] had at least mild [OSA] based on his symptoms and anatomy. during his time on active duty in the U.S. Navy.” As M.C. explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). For the foregoing reasons, the evidence reflects that the Veteran’s OSA had its onset in service. Entitlement to service connection for OSA is therefore warranted. See 38 C.F.R. § 3.303(a) (“service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces”). Withdrawals An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. An appeal may be withdrawn by an appellant or by his representative. 38 C.F.R. § 20.204(a). Except when made on the record at a hearing, appeal withdrawals must be in writing. An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204(b). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). The Veteran was seeking entitlement to service connection for allergic dermatitis, initial rating higher than 10 percent for allergic rhinitis with chronic cough, and initial rating higher than 30 percent for chronic diarrhea. He perfected his appeal in April 2015. In an October 2016 letter, the Veteran stated that he “would like to withdraw my appeal for chronic cough, chronic diarrhea, and allergic dermatitis.” During an October 2016 phone call with VA, he confirmed his withdrawal of the issues. The Federal Circuit has not addressed the criteria as to a written request to withdraw a claim. See Acree v. O’Rourke, 891 F.3d 1009, 1013, n. 2 (Fed. Cir. 2018) (“Resolution of Acree’s appeal turns on the requirements necessary for an effective oral withdrawal of a claim at a board hearing. We express no view on the criteria that must be satisfied when a veteran submits a written request to withdraw a claim”). The Court has held that “withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In his written statement, the Veteran listed all of the issues on appeal and identified those he wished to withdraw. This distinction between the claims he wanted to withdraw and those he did not reflects an understanding of the consequences of withdrawal, in addition to being explicit and unambiguous. Thus, the Veteran validly withdrawn his appeal of the denials of the claims for entitlement to service connection for allergic dermatitis, initial rating higher than 10 percent for allergic rhinitis, and initial rating higher than 30 percent for chronic diarrhea before the Board, there is effectively no longer any remaining allegation of error of fact or law concerning these issues. See 38 U.S.C. § 7105 (d)(5). Accordingly, the Board does not have jurisdiction to review these claims, and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for HTN is remanded. The Veteran contends that his HTN was incurred during service, or is due to or aggravated by his service-connected major depressive disorder (MDD). In a December 2017 letter, the Veteran’s private physician stated that the Veteran’s MDD “may aggravate” his HTN. A June 2018 VA examination report reflects extensive review of the Veteran’s claims file, to include his blood pressure readings during service. The VA examiner opined that it was less likely than not that the Veteran’s HTN was related to service because medical records did not show sufficient evidence of continuity and chronicity of symptoms relative to HTN during service. The Board finds the June 2018 VA opinion inadequate as it does not discuss whether the Veteran’s HTN is due to or aggravated by his service-connected MDD. As such, the Board finds that a remand is necessary to address the nature and etiology of the Veteran’s HTN. See Barr v. Nicholson, 21 Vet. App. 30 (2007) (holding that once VA undertakes the effort to provide an examination or obtain medical opinion, it must ensure that one is provided or obtained that is adequate for the determination being made). 2. Entitlement to service connection for ED is remanded. The Veteran contends that his ED is due to or aggravated by HTN or his service-connected MDD. A February 2015 VA examination report reflects review of the claims file and in-person examination of the Veteran. The examiner opined that ED was less likely than not due to depression because the Veteran was first prescribed Viagra in 2004, and he was not prescribed antidepressant until 2006. The examiner noted that the Veteran had a long-standing history of HTN dating back to at least 2001 and DM since 2003. He opined that it was more likely that persisting ED was related to HTN, DM, and hyperlipidemia rather than depression and its treatment, given the available documentation in the medical record. The Board finds the June 2018 VA opinion inadequate as it does not discuss whether the Veteran’s ED is aggravated by his service-connected MDD. As such, the Board finds that a remand is necessary to address the nature and etiology of the Veteran’s ED. See Barr, 21 Vet. App. at 30 (holding that once VA undertakes the effort to provide an examination or obtain medical opinion, it must ensure that one is provided or obtained that is adequate for the determination being made). In addition, the Board notes that the decision herein remanded for additional development the Veteran’s claim for service connection for HTN, which may impact adjudication of the claim for entitlement to service connection for ED. Consequently, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Request an opinion from an appropriate specialist physician to address the nature and etiology for HTN, to include as secondary to service-connected MDD. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the physician prior to completion of the medical opinion, and the medical opinion must reflect that the claims folder was reviewed. The physician should provide an opinion whether the Veteran’s HTN is either (i) caused or (ii) aggravated by service-connected MDD. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The physician should also consider and discuss all lay assertions, to include the Veteran’s assertions as to the nature, onset, and continuity of symptoms. 2. Request an opinion from an appropriate specialist physician to address the nature and etiology for ED, to include as secondary to HTN or service-connected MDD. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the physician prior to completion of the medical opinion, and the medical opinion must reflect that the claims folder was reviewed. The physician should provide an opinion whether the Veteran’s ED is either (i) caused or (ii) aggravated by HTN or service-connected MDD. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. (Continued on the next page)   The physician should consider and discuss all lay assertions, to include the Veteran’s assertions as to the nature, onset, and continuity of symptoms. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel