Citation Nr: 18160304 Decision Date: 12/28/18 Archive Date: 12/26/18 DOCKET NO. 14-24 991A DATE: December 28, 2018 ORDER New and material evidence having been received, the claim for service connection for sleep apnea is reopened. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension, is remanded. Entitlement to an initial rating in excess of 30 percent for left foot pes planus with hammertoes and hyperkeratotic lesions is remanded. Entitlement to an initial rating in excess of 30 percent for right foot pes planus with hammertoes and hyperkeratotic lesions is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. FINDINGS OF FACT 1. A July 2009 rating decision denied service connection for sleep apnea. The Veteran did not appeal that decision or submit new and material evidence within one year of its issuance. 2. Evidence received since the July 2009 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea. CONCLUSIONS OF LAW 1. The July 2009 rating decision that denied the claim for service connection for sleep apnea is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The evidence received since the July 2009 rating decision is new and material, and the claim for service connection for sleep apnea is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Whether new and material evidence has been submitted to reopen a claim for service connection for sleep apnea. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. VA denied service connection for sleep apnea in a July 2009 rating decision. In that decision, VA indicated that the Veteran had not provided evidence indicating that his claimed sleep apnea disability was related to either service or a service-connected disability. Reviewing the evidence submitted since the July 2009 rating decision, in a December 2012 VA medical examination report, a VA examiner stated that medical literature showed a direct correlation between sleep apnea and hypertension. Because the Veteran's service-connected hypertension predated his sleep apnea, the examiner stated that the Veteran’s sleep apnea was at least as likely as not proximately due to or the result of hypertension. The December 2012 VA medical examination report is new, because it was not before VA at the time of the July 2009 rating decision. When presuming the credibility of the new evidence, as is required only when determining whether to reopen a previously denied claim for service connection, it is also material because it indicates that the Veteran’s sleep apnea is related to a service-connected disability. New and material evidence having been received, the claim for service connection for sleep apnea is reopened. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. As noted above, in a December 2012 VA medical examination report, a VA examiner, specifically a physician assistant, opined that the Veteran’s sleep apnea was at least as likely as not proximately due to or the result of the Veteran's service-connected hypertension. Subsequently, in a January 2013 VA medical opinion, a VA examiner stated that the Veteran's sleep apnea was not a result of hypertension, because hypertension could not cause sleep apnea. The examiner indicated that sleep apnea, however, could cause hypertension, because of impairment of circulation related to sleep apnea. In order to reconcile the contradictory evidence, a remand is necessary to obtain a specialist’s opinion. 2. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. While the record contains an October 2016 VA examination regarding the Veteran’s left knee disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26 (2017). While the examiner stated that an opinion regarding the severity of the Veteran's left knee disability during flare-ups could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. 3. Entitlement to higher initial ratings for right and left foot disabilities is remanded. Regarding the claims of entitlement to higher initial ratings for left and right foot disablities, the Veteran submitted a timely notice of disagreement with a January 2013 rating decision that denied increased ratings for right and left foot disabilities, but a statement of the case has not yet been issued. A remand is required for the issuance of a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Send the Veteran a statement of the case that addresses the issues of entitlement to higher initial ratings for left and right foot disabilities. If the Veteran perfects an appeal by submitting a timely VA Form 9, return those issues to the Board. 2. Schedule the Veteran for a VA examination with a medical doctor to determine the etiology of sleep apnea. The examiner must review the claims file and should note that review in the report. The examiner should note and comment upon the service medical records, the Veteran's lay statements, the December 2012 VA medical examination report, and the January 2013 VA medical opinion. The examiner should offer the following opinions: (a.) Is the Veteran's sleep apnea at least as likely as not related to service? (b.) Is the Veteran's sleep apnea at least as likely as not proximately due to the service-connected hypertension? (c.) Is the Veteran’s sleep apnea at least as likely as not aggravated beyond its natural progression by the service-connected hypertension? The examiner should discuss medical research regarding any relationship between hypertension and sleep apnea. 3. Schedule the Veteran for a VA examination of the current severity of a left knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing for the left and right knees. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairment due to the left knee disability and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living. The examiner should state whether there is recurrent subluxation or lateral instability, and if so the severity of any recurrent subluxation or lateral instability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel