Citation Nr: 1817681	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO. 14-21 554	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for hypertension, to include as secondary to service-connected sleep apnea.

2. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for arrhythmia, to include as secondary to service-connected sleep apnea.

3. Entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea.

4. Entitlement to service connection for arrhythmia, to include as secondary to service-connected sleep apnea.


REPRESENTATION

Appellant represented by:	The American Legion
ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June May 1977 to May 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Board has modified the Veteran's claims to encompass all disorders raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the [Veteran's] description of the claim; the symptoms the [Veteran] describes; and the information the [Veteran] submits or that the Secretary obtains in support of that claim").

The issues of entitlement to service connection for hypertension and for arrhythmia, to include as secondary to service-connected sleep apnea, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In an unappealed rating decision issued in October 2010, service connection for hypertension and arrhythmia was denied.

2. The evidence received since the October 2010 rating decision relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for hypertension, to include as secondary to service-connected sleep apnea.

3. The evidence received since the October 2010 rating decision relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for arrhythmia, to include as secondary to service-connected sleep apnea.


CONCLUSIONS OF LAW

1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for arrhythmia, to include as secondary to service-connected sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, in view of the Board's favorable decision to reopen the Veteran's claims for service connection for hypertension and arrhythmia, further assistance is unnecessary.


Legal Criteria & Analysis

As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." 

Under 38 C.F.R. § 3.156(a), new evidence means 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 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 submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d at 1384; Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993).

The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly received evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate decision to be made if evidence is new and material. Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen).

Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. The Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record.

In March 2010, the Veteran filed a claim for service connection for hypertension and arrhythmia. He contended that his diagnosed sleep apnea was related to his diagnosed hypertension and arrhythmia. The RO denied the claims in an October 2010 rating decision. The Veteran did not file an appeal, or submit new and material evidence within one year or that decision, and the decision became final.

Subsequent to the March 2010 rating decision, service connection for sleep apnea was granted in an October 2013 rating decision.  

The Veteran also submitted a November 2010 treatment record from his private physician, Dr. J., which was received in March 2013. Dr. J. stated that the Veteran's sleep apnea "ha[d] been identified as a potential marker combined with atrial fibrillation with the association identified in some research." 

In January 2013 and November 2013, the Veteran submitted medical literature suggesting a relationship between sleep apnea and atrial fibrillation and sleep apnea and hypertension.

Upon review of the record, the Board finds that new and material evidence has been received with respect to the Veteran's service connection claims for hypertension and arrhythmia. The statement by Dr. J. that sleep apnea is a "potential marker combined with atrial fibrillation," i.e., a form of arrhythmia, see Dorland's Illustrated Medical Dictionary 695 (30th ed. 2003), suggests a relationship between the Veteran's service-connected sleep apnea and his arrhythmia. Similarly, the medical literature associated with the claims file also supports the existence of a nexus between his sleep apnea and his arrhythmia and hypertension. Moreover, neither Dr. J.'s progress note nor the medical literature was available for review when the October 2010 rating decision was issued. Accordingly, the claims of entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea, and arrhythmia, to include as secondary to service-connected sleep apnea, have been met. See 38 C.F.R. § 3.156.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea, is reopened; the appeal is granted to this extent only.

New and material evidence having been received, the claim of entitlement to service connection for arrhythmia, to include as secondary to service-connected sleep apnea, is reopened; the appeal is granted to this extent only.


REMAND

VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).

The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.

The Board finds that the new and material evidence of record constitutes competent evidence indicating a link between the Veteran's service-connected sleep apnea and his diagnosed hypertension and arrhythmia. However, the Board notes that Dr. J. did not determine whether the Veteran's arrhythmia is at least as likely as not related to his sleep apnea. He also did not provide a detailed rationale for his conclusion. Further, while the Board acknowledges the medical literature received, generic medical literature that does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to satisfy the nexus element for an award of service connection. See Sacks v. West, 11 Vet. App. 314 (1998). As such, there is presently insufficient evidence of record to decide the claims. Accordingly, VA examinations regarding the etiology of the Veteran's hypertension, to include as secondary to service-connected sleep apnea, and arrhythmia, to include as secondary to service-connected sleep apnea, are warranted. See McLendon, 20 Vet. App. at 83.

Accordingly, the case is REMANDED for the following actions:

1. With any required assistance of the Veteran, obtain any outstanding VA and/or private medical records and associate them with the claims file. Also, ensure that all available service treatment records have been associated with the claims file.

2. Following completion of the above, schedule a VA examination with an appropriate health professional to determine the nature and etiology of the Veteran's hypertension. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report.

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is caused or aggravated by his service, to include as secondary to service-connected sleep apnea. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as any increase in disability. The examiner is also reminded that if he or she finds that the Veteran's hypertension is not caused or aggravated by his sleep apnea, he/she must also determine whether his hypertension is otherwise related to service.

In rendering the opinion, the examiner must specifically consider the positive evidence of record, including the medical literature submitted by the Veteran and associated with the claims file.

The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so.

The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.
3. Further, schedule a VA examination with an appropriate health professional to determine the nature and etiology of the Veteran's arrhythmia. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report.

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's arrhythmia is caused or aggravated by his service, to include as secondary to service-connected sleep apnea. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as any increase in disability. The examiner is also reminded that if he or she finds that the Veteran's arrhythmia is not caused or aggravated by his sleep apnea, he/she must also determine whether his arrhythmia is otherwise related to service.

In rendering the opinion, the examiner must specifically consider the positive evidence of record, including the November 2010 progress note by Dr. J. and the medical literature submitted by the Veteran and associated with the claims file.

The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so.

The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.

4. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs