Citation Nr: 18156336 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-24 711 DATE: December 7, 2018 ORDER New and material evidence has been received and the claim for service connection for sleep apnea is reopened. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a February 2013 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for sleep apnea; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the February 2013 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for sleep apnea. CONCLUSIONS OF LAW 1. The portion of the February 2013 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2012). 2. New and material evidence has been received and the claim seeking service connection for sleep apnea is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to November 1971 and from February 1991 to April 1991. The Veteran also served in the United States Army Reserve. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing 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. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for sleep apnea in a February 2013 rating decision, finding that there was no evidence sleep apnea had its onset in service. The Veteran was provided notice of this decision and his appellate rights but did not timely appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2012). The evidence received since the February 2013 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran submitted statements of Army Reservists who served with him. They recall specifically serving with the Veteran during the 1990s and observing the Veteran using a C-PAP machine because he snored and had difficulty breathing while he was asleep. It is noted that service connection may be granted for a disability resulting from injury incurred in or aggravated while performing active duty for training (ADT) or inactive duty for training (IADT) or a disease incurred or aggravated while performing ADT. 38 U.S.C. §§ 101(24), 106. The Board finds these statements raise a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND Although the claim for service connection is now reopened, further development is needed before reaching a decision on the merits of the reopened claim. The medical records in evidence clearly establish the Veteran has been diagnosed with sleep apnea, specifically obstructive sleep apnea, with the earliest documented diagnosis in September 2003. The Veteran recalls being diagnosed with sleep apnea in either 1993 or 1994. Therefore, upon remand, the Agency of Original Jurisdiction (AOJ) should send a letter to the Veteran requesting him to submit or authorize VA to obtain any outstanding medical records, specifically requesting the Veteran to provide VA with the medical records establishing when he was initially diagnosed with sleep apnea. Ongoing VA treatment records should also be obtained. Once the records development is completed, a VA medical opinion should be obtained. Thereafter, if necessary, the AOJ should obtain records or information to verify appropriate periods of ADT or IADT. The Board notes that leave and earning statements (LESs) often indicate duty status in explaining pay and should be considered if there is a need to verify a specific period of ADT or IADT. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his sleep apnea claim. The Veteran should specifically be asked to identify the 1993 or 1994 treatment records when he was first diagnosed with sleep apnea and provided a C-PAP machine. All identified VA records, including any records since February 2015, should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the Veteran should be afforded a VA examination to determine the nature of any sleep apnea disability, and to obtain an opinion as to whether such is related to service. The claim file should be reviewed by the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that sleep apnea: (a) First manifested during a period of ADT or IADT; or, (b) if sleep apnea preexisting a period of ADT or IDT, was aggravated beyond normal progression as a result of the ADT or IADT. In answering these questions, the examiner is asked to specifically address when sleep apnea first manifested, to the extent possible. If the Veteran cannot or does not report for an examination, an opinion should be obtained without examination. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. If an opinion cannot be offered without speculation, the examiner should fully explain what specific information is necessary before an opinion can be offered or why exactly an opinion cannot be offered. 3. If the evidence indicates onset or worsening of sleep apnea during a period the Veteran reports as ADT or IADT, efforts should be made to verify the Veteran’s duty status at the time, to include by obtaining LESs if necessary. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel