Citation Nr: 18120366 Decision Date: 07/24/18 Archive Date: 07/23/18 DOCKET NO. 15-19 954A DATE: July 24, 2018 ORDER The application to reopen a claim of entitlement to service connection for a right bundle branch block with a left anterior fascicular block, sinus bradycardia, and a heart murmur is granted. Entitlement to service connection for a sleep disorder is granted. REMANDED Entitlement to service connection for a right bundle branch block with a left anterior fascicular block, sinus bradycardia, and a heart murmur is remanded. FINDINGS OF FACTS 1. In a January 2009 decision, the RO denied entitlement to service connection for a right bundle branch block with a left anterior fascicular block, sinus bradycardia, and a heart murmur. The Veteran did not appeal. 2. The evidence added to the record since the January 2009 RO decision was not previously submitted to agency decision makers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a heart condition. 3. The Veteran’s sleep disorder is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The January 2009 rating decision that denied entitlement to service connection for a right bundle branch block with a left anterior fascicular block, sinus bradycardia, and a heart murmur is final. 38 U.S.C. § 7105(c) (2012); 38 U.S.C. § 20.1103 (2017). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a right bundle branch block with a left anterior fascicular block, sinus bradycardia, and a heart murmur. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for a sleep disorder are met. 38 U.S.C. §§ 1110, 1131, 1507 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to September 2007, including in Southwest Asia during the Persian Gulf War era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. The Veteran’s claim for service connection for a sleep disorder was originally denied in a September 2013 rating decision. Within one year of that decision, the Veteran submitted new and material evidence. Therefore, the claim was readjudicated in a February 2014 rating decision, which confirmed and continued the previous denial. See 38 C.F.R. § 3.156. The Veteran perfected an appeal. Regarding the Veteran’s claim of entitlement to service connection for a sleep disorder, the Board notes that the Veteran’s initial claim was for entitlement to service connection for sleep apnea (also claimed as insomnia). However, the record shows multiple diagnosis for various sleep disorders, in addition to sleep apnea, for which he was seeking service connection. The scope of a claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Given the foregoing, the Board has recharacterized the claim as entitlement to service connection for a sleep disorder as styled on the title page. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right bundle branch block with a left anterior fascicular block, sinus bradycardia, and a heart murmur The Veteran petitions to reopen his previously denied service connection claim of entitlement to service connection for a right bundle branch block with a left anterior fascicular block, sinus bradycardia, and a heart murmur. For the following reasons, the Board finds that reopening is warranted. Service connection was previously denied in a January 2009 rating decision because the evidence did not show any residual findings in service or during subsequent evaluations of the Veteran’s heart. The Veteran was notified of the January 2009 rating decision and of his appellate rights by a letter dated January 20, 2009. The Veteran did not submit a notice of disagreement or initiate an appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017) (setting forth requirements and timeframe for perfecting an appeal). Moreover, new and material evidence related to the claim was not of record within one year of this decision. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final); see also 38 C.F.R. § 3.400(q) (2017) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”). Accordingly, the January 2009 rating decision is final. See 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156 (a). The new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA received medical records in June 2013 that show complaints of and treatment for symptoms related to the Veteran’s heart and diagnoses of chest tightness, chest pressure, and an abnormal EKG. Furthermore, in a May 2014 statement, the Veteran asserted that he believes his heart condition is related to an undiagnosed illness or a medically-unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War. In an October 2013 statement, the Veteran noted his cardiologist could not determine why his heart condition had worsened. At the time of the January 2009 rating decision, these medical records and statements were not of record. Thus, the new evidence is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate service connection, and raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.356(a). As noted above, the credibility of the evidence is also presumed. Therefore, the claim is reopened. 2. Entitlement to service connection for a sleep disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b) (2017). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a). The theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts that his sleep disorder had its onset during his active service. It was noted at his September 1986 enlistment exam that he did not have frequent trouble sleeping. However, in September 1997, it was reported he had problems going to sleep and experienced sleep disturbance two to three times throughout the night. A review of the Veteran’s STRs show he reported an onset of insomnia for three years in October 1997. The Veteran also reported fatigue and frequent tiredness in November 1998. He also noted experiencing tiredness after sleeping in December 2003. He had a sleep study completed in July 2004. The impression was a normal awake and sleep EEG study. In April 2007, the Veteran reported his sleep as being “not good.” Post service, a July 2008 VA examination notes that a sleep disorder clinic evaluation report from October 2007 had been reviewed, and it noted a diagnosis of psychophysiologic insomnia. July 2009 VA treatment records note a circadian rhythm sleep disorder. June 2012 and July 2012 private treatment records with a sleep study note impressions of sleep apnea, insomnia, and severe hypersomnia. Furthermore, a May 2013 private treatment record notes an impression of sleep apnea. A few months later, an August 2013 private treatment report shows a diagnosis of sleep apnea. Furthermore, in an August 2015 statement, the Veteran noted he had been diagnosed with bruxism. He also stated he had been fitted with a mouth guard after his active service. Based on the foregoing, the Board concludes that the Veteran’s sleep disorder originated during his active service. The Veteran experienced symptoms during his active service that could be attributed to his later diagnoses. Furthermore, post-service medical evidence shows that the Veteran continues to receive treatment for his symptoms. Accordingly, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for a sleep disorder is warranted. 38 U.S.C. § 5107 (b) (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a right bundle branch block with a left anterior fascicular block, sinus bradycardia, and a heart murmur The Board notes the Veteran has not been provided with a VA examination related to his claimed condition. In a May 2014 statement, the Veteran asserted that he believes his heart condition is related to an undiagnosed illness or a medically-unexplained chronic multi-symptom illness resulting from his active service in Southwest Asia during the Persian Gulf War because he was in close proximity to oil fields that were burning in Kuwait and that he had burned feces. Furthermore, a letter dated July 1997 notes the Veteran’s unit had been near Khamisiyah, Iraq in early March 1991 and may have been exposed to the nerve agent sarin and cyclosarin. In an October 2013 statement, the Veteran noted that his cardiologist had trouble determining why his heart condition had worsened. The Veteran’s DD 214 reflects service in Southwest Asia during the Persian Gulf War era. The Veteran was given a Gulf War medical examination in September 2016, but the examiner did not address any cardiovascular symptoms. Accordingly, under these circumstances in order to have an adequate record to base a decision and considering the duty to assist, the Veteran should be scheduled with an appropriate examination to determine the etiology of his claimed condition. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claim. 2. Schedule the Veteran for a cardiovascular examination to ascertain the nature and likely etiology of any currently diagnosed heart disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner, and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a.) Identify all current cardiovascular disabilities associated with the Veteran. If no such disorder is diagnosed, please reconcile that conclusion with the pertinent medical evidence in the record, cited above. (b.) For each identified cardiovascular disability, is it at least as likely as not (50 percent or greater probability) that such disability manifested during, or as a result of, the Veteran’s active military service, to include his service in Southwest Asia? (c.) If the answer to (b) is no, is it at least as likely as not (50 percent or greater probability) that examination findings or other evidence demonstrate that the Veteran’s cardiovascular symptoms are manifestations of: i. An undiagnosed illness (signs or symptoms cannot be attributed to known medical diagnoses); or (Continued on the next page)   ii. A medically unexplained chronic multisymptom illness. BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel