Citation Nr: 18155589 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 14-31 038A DATE: December 4, 2018 ORDER New and material evidence having been received, the application to reopen the previously denied claims of entitlement to service connection for a sleep disorder and bilateral foot disorder are reopened. REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a bilateral foot disorder is remanded Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for anemia is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for food allergies is remanded. Entitlement to service connection for yeast infections is remanded. Entitlement to service connection for hypoglycemia is remanded. Entitlement to service connection for a gastrointestinal disorder, characterized as irritable bowel syndrome, is remanded. Entitlement to service connection for a sciatic nerve disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, characterized as anxiety and depression, but not to include attention deficit hyperactivity disorder (ADHD), is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a December 2003 rating decision, the claims of entitlement to service connection for a sleep disorder and bilateral foot disorder were denied because the sleep disorder was not incurred in or related to service, and the Veteran did not have a current diagnosis of a bilateral foot disorder. 2. The evidence added to the record since the December 2003 rating decision relates to an unestablished fact that is necessary to substantiate the claims of service connection for a sleep disorder and bilateral foot disorder. CONCLUSIONS OF LAW 1. The December 2003 rating decision that denied the Veteran’s claims for entitlement to service connection for a sleep disorder and bilateral foot disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the December 2003 rating decision is new and material, the requirements to reopen the claims for a sleep disorder and bilateral foot disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to October 1984, and from September 1985 to September 1989. As a preliminary matter, the Board observes that the Regional Office (RO) initially denied the Veteran’s new and material and service connection claims that are the subject of this herein appeal in November 2009. Further, in March 2010, the Veteran submitted a notice of disagreement (NOD) for all the issues adjudicated in the November 2009 rating decision. However, based upon the subsequent May 2010 statement of the case, it appears that the RO construed the NOD to only be an appeal of entitlement to individual unemployability. Nevertheless, after a careful review of the Veteran’s March 2010 NOD, the Board finds that the Veteran filed a timely NOD for all the issues on appeal. As such, the November 2009 rating decision is not final and is still on appeal. The Board acknowledges that the Veteran filed a claim for entitlement to service connection for a psychiatric disorder, claimed as ADHD, anxiety, and depression. However, in April 2012, the Veteran specifically withdrew his ADHD claim. As such, the Board notes that a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, as reflected herein, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record, not to include ADHD. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also observes that in January 2009, the Veteran filed a claim for a “sleeping disorder, now claimed as sleep apnea.” In November 2009, the RO characterized the issue as a service connection claim for a “sleep disorder (also claimed as sleep apnea),” and determined that there was not sufficient evidence to reopen his previously denied sleep disorder claim. However, the Board takes notice of the fact that sleep apnea is a respiratory disorder that is separate and distinct from a sleep disorder. Therefore, the Board has separated the Veteran’s sleep disorder and sleep apnea claims into two distinct claims to reflect his intent. See Clemons, 23 Vet. App. 1. Moreover, the Board has jurisdiction over the sleep apnea claim given that the RO actually adjudicated this issue (as part of the sleep disorder clam) in the November 2009 rating decision. New and Material 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a sleep disorder 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a bilateral foot disorder In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In this case, the Veteran is claiming entitlement to service connection for a sleep disorder and bilateral foot disorder. These claims were previously denied by the RO in December 2003 on the basis that they were not related to service and/or the Veteran did not have a current diagnosis, respectively. He did not appeal that decision, nor did he submit any new and material evidence within a year of receiving it. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claims. After a review of the evidence submitted since the December 2003 rating decision became final, the Board determines that the claims should be reopened. The record now includes new evidence, including buddy statements, private opinions, and treatment records, which raises the possibility that his sleep disorder may be related to service, to include as secondary to his now claimed psychiatric disorder. Further, the medical records reflect that the Veteran now has a diagnosis of a bilateral foot disorder that may be related to service. Not only is this evidence “new” in that it was not of record prior to the last final denial of the claims, it is also “material,” as it relates to an unestablished fact necessary to support the claims. Namely, it shows that there may be a nexus between his currently diagnosed sleep and bilateral foot disorders, and the Veteran’s active duty service. Therefore, the claims should be reopened on this basis. REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder is remanded. 2. Entitlement to service connection for a bilateral foot disorder is remanded. The Veteran has submitted new and material evidence, including statements from his family and friends, as well as treatment records, relating to a nexus between his sleep and bilateral foot disorders, and to active service. However, since the claims were not considered on the merits, they must be remanded for that purpose. See Hickson v. Shinseki, 23 Vet. App. 394 (2010) (“When the Board reopens a claim after the AOJ has denied reopening that same claim, the matter generally must be returned to the AOJ for consideration of the merits.”). Therefore, a remand is required in order for the RO to consider the evidence and for the issuance of an appropriate supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304(c). Further, the Board observes that the medical evidence, including the statements from the Veteran’s brother and friend, reflect that his sleep disorder may have had its onset during and/or is otherwise etiologically related to service. Therefore, a VA examination is warranted based upon the evidence of record. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for fibromyalgia is remanded. 4. Entitlement to service connection for anemia is remanded. 5. Entitlement to service connection for chronic fatigue syndrome is remanded. 6. Entitlement to service connection for food allergies is remanded. 7. Entitlement to service connection for yeast infections is remanded. 8. Entitlement to service connection for hypoglycemia is remanded. 9. Entitlement to service connection for a gastrointestinal disorder, characterized as irritable bowel syndrome, is remanded. 10. Entitlement to service connection for a sciatic nerve disorder is remanded. 11. Entitlement to service connection for an acquired psychiatric disorder, characterized as anxiety and depression, but not to include ADHD, is remanded. 12. Entitlement to service connection for sleep apnea is remanded. With respect to these issues, as previously discussed, the November 2009 rating decision is not final. As such, the RO should issue an appropriate statement of the case adjudicating entitlement to service connection for the issues on appeal based on the merits. Manlincon v. West, 12 Vet. App. 238 (1999). Next, the Board observes that the evidence of record, including the January 1988 service treatment records, reflect that the Veteran had gastrointestinal symptoms during service, as well as a current diagnosis of irritable bowel syndrome. Further, his June 2013 VA treatment records and statements from his brother and friend, indicate that his psychiatric disorder may be related to service. Therefore, VA examinations are warranted to determine the etiology of these disorders. See McLendon, 20 Vet. App. 79. The matters are REMANDED for the following action: 1. Obtain any and all treatment records from the VA Medical Center in North Texas, Texas, since August 2015, and any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of his psychiatric, sleep, and gastrointestinal disorders. The claims file must be reviewed, including the new records. The examiner should identify all current psychiatric disorders found on examination, including depression and anxiety. If PTSD is diagnosed, the examiner must use the diagnostic criteria specified in the DSM-V, and specify the stressor(s) upon which the diagnosis was based. For each diagnosed psychiatric, gastrointestinal, and sleep disorder, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed disorder is etiologically related to the Veteran’s period of service. 3. The RO should undertake any other development deemed necessary in order to adjudicate the claims on appeal, including obtaining any VA examinations or opinions that are necessary to adjudicate the claims. Following any additional indicated development, the RO should review the claims file and re-adjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel