Citation Nr: 18155786 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-43 832 DATE: December 6, 2018 ORDER The previously denied claim of entitlement to service connection for major depressive disorder is reopened. REMANDED Whether new and material evidence has been received to reopen the previously denied claim of service connection for bilateral hearing loss is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected sleep apnea is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and anxiety, to include as secondary to service-connected disabilities of sleep apnea, tinnitus, hernia, and GERD is remanded. Entitlement to an evaluation in excess of 50 percent for sleep apnea is remanded. Entitlement to an increased rating for postoperative ventral hernia is remanded. FINDINGS OF FACT 1. A claim of entitlement to service connection for depression was initially denied in a June 2005 rating decision; the denial was continued in a May 2007 rating decision. This claim was denied on the basis that there was no nexus between the claimed condition and his service. 2. Evidence received since the May 2007 rating decision speaks to the reasons for the previous final denial and warrants reopening the Veteran’s claim for service connection for depression. CONCLUSION OF LAW 1. The criteria to reopen the previously denied claim of entitlement to service connection for major depressive disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION Claim to Reopen A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is considered “new” if it was not previously submitted to agency decision makers; “material” evidence is 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” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, 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 to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. 1. New and material evidence was received to reopen the previously denied claim of entitlement to service connection for depression. In this case, the Veteran’s claim of entitlement to service connection for depression was denied in a May 2007 rating decision. The basis of the denial was that there was no nexus between the condition and his active service. The RO notified the Veteran of this decision and of his right to appeal, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence associated with the file includes a March 2016 letter from the Veteran’s sister, noting that the Veteran’s psychiatric symptoms began while he was on active duty. There is an April 2016 examination conducted by a private treatment provider who provided the opinion that the Veteran’s “depressive disorder and social impairment” is related to his active service, and is also related to his tinnitus, sleep apnea, umbilical hernia, and GERD. This new evidence is material because it speaks to the bases for the prior denial. As it is considered to have a reasonable possibility of substantiating the claim, reopening of the claim is warranted. 38 C.F.R. § 3.156(a). REASONS FOR REMAND The issue of whether new and material evidence has been received sufficient to reopen the previously denied claim of service connection for bilateral hearing loss, along with the claims of entitlement to service connection for (1) headaches, to include as secondary to sleep apnea, (2) an acquired psychiatric disorder, to include major depressive disorder and anxiety, to include as secondary to service-connected disabilities of sleep apnea, tinnitus, hernia, and GERD, (3) an evaluation in excess of 50 percent for sleep apnea, and (4) a compensable rating for postoperative ventral hernia are remanded. Although the additional delay is regrettable, careful review of the file shows that further development is required before the Board may adjudicate these issues. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159 (c)(2); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). The record indicates that there are Social Security Administration records that have not been associated with the claims file. Specifically, there is a March 2015 document associated with the claim indicating that the Veteran has been awarded monthly disability benefits from the Social Security Administration. No efforts to secure these documents are documented in the record. Efforts to secure these records must be made prior to the adjudication of any of the outstanding issues. Further, the evidence currently associated with the file shows that additional clarification and development must be performed on specific claims. Regarding the claim of entitlement to service connection for an acquired psychiatric disability, a VA psychiatric examination is warranted to examine the Veteran and review the various medical documents that have been associated with the record since the last VA examination, including those from the Veteran’s private clinician. The VA examiner should assess the Veteran for the nature of his psychiatric disability, and should determine if the current disability began or is otherwise related to any condition noted during active service, or if the current disability is related to any service-connected disability. Regarding the claim of entitlement to service connection for headaches, there are numerous VA treatment records noting that the Veteran complains of frequent headaches. The Veteran submitted pleadings and evidence indicating that the condition may be related to his service-connected sleep apnea. As the record does not reflect that the Veteran has been afforded a VA examination, a VA examination is warranted to address the nature and etiology of his headaches. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the record. 2. Then, schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran’s diagnosed acquired psychiatric disabilities. The Veteran’s claims folder must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that any identified acquired psychiatric disorder had causal origins in service or is otherwise related to the Veteran’s active duty service. The examiner should also comment on whether it is at least as likely as not, (50 percent probability or greater), that any identified acquired psychiatric disorder was (A) caused or (B) aggravated (permanently worsened beyond normal progression) by the service-connected disabilities. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Then, schedule the Veteran for an appropriate examination to determine the nature and etiology of the Veteran’s headaches. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that any identified headache disorder had is causal origins in service or is otherwise related to the Veteran’s active duty service. The examiner should also comment on whether it is at least as likely as not, (50 percent probability or greater), that any diagnosed headache disorder was (A) caused or (B) aggravated (permanently worsened beyond normal progression) by the service-connected disabilities. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD King, Timothy, Associate Attorney