Citation Nr: 18133045 Decision Date: 09/07/18 Archive Date: 09/07/18 DOCKET NO. 17-21 062 DATE: September 7, 2018 ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for sleep apnea, to include as due to exposure to herbicides, and the appeal to this extent is granted. REMANDED The claim of entitlement to service connection for sleep apnea is remanded. The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The claim of entitlement to service connection for a heart condition claimed as tachycardia, is remanded.   FINDINGS OF FACT 1. An unappealed September 2008 rating decision denied the Veteran’s claim of entitlement to service connection for sleep apnea, to include as due to exposure to herbicides. The Veteran filed a notice of disagreement in December 2008, and the local Regional Office (RO) issued a Statement of the Case in May 2009. The Veteran did not then file a substantive appeal. Thus, the decision became final. 2. The evidence associated with the record subsequent to the September 2008 rating decision includes two private opinions relating the Veteran’s sleep apnea to service. CONCLUSIONS OF LAW 1. The September 2008 rating decision denying entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the September 2008 rating decision relevant to the claim of entitlement to service connection for sleep apnea is new and material, and the claim is reopened. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from July 1966 to April 1968. The Veteran received the Vietnam Campaign Medal and the Vietnam Service Medal, among other commendations. The Board of Veterans’ Appeals (Board) notes that VA received the Veteran’s opt-in form for the Rapid Appeals Modernization Program (RAMP) in June 2018; however, as the Veteran’s claims were already before the Board by that time, these claims are no longer eligible for RAMP. NEW AND MATERIAL EVIDENCE A final decision cannot be reopened unless new and material evidence is presented. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Whether new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea, to include as due to exposure to herbicides The Veteran seeks to reopen his claim of entitlement to service connection for sleep apnea. In a September 2008 rating decision, the RO denied entitlement to service connection for sleep apnea, to include as due to exposure to herbicides, as sleep apnea is not a disability for which presumptive service connection is available based on herbicide agent exposure. See 38 C.F.R. §§ 3.307, 3.309(e). Additionally, the RO determined that the evidence did not show a nexus between the Veteran’s service and current sleep apnea. The Veteran was notified of that decision and his appellate rights. The Veteran filed a notice of disagreement, and the RO issued a Statement of the Case in May 2009. Two days after the RO issued the SOC in May 2009, the Veteran filed a statement asking the RO to “[p]lease accept this notification as my formal Notice of Disagreement (NOD) for Rating decision, date, 2009. // The issue(s) that I’m in disagreement is: SLEEP APNEA[.]” This May 2009 statement cannot be accepted in lieu of a substantive appeal for several reasons. First, although it was received after the SOC, it was dated prior to the rating decision. Relatedly, it states on its face that it was intended to be an NOD, not a substantive appeal. These two facts show that the statement was not responsive to the May 2009 SOC and not intended to be a substantive appeal. Third, it was not on a VA Form 9 or contain the necessary information. Thus, it cannot be construed as a substantive appeal. See 38 C.F.R. § 20.202. He did not otherwise file a substantive appeal. Because he did not file a timely appeal, the claim became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The evidence before VA by the time of the May 2009 SOC consisted of the Veteran’s service treatment records, VA treatment records, private treatment records, and the Veteran’s lay assertions. The relevant evidence associated with the claims file relating to sleep apnea following the September 2008 rating decision includes a December 2012 statement by a private doctor and an October 2015 statement by a different private doctor. This evidence is “new” because it was not previously before the adjudicator. The new evidence is also “material” because it relates to whether the Veteran’s sleep apnea is the result of service, which is the reason the claim was previously denied. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for sleep apnea. Hence, the appeal to this extent is allowed, and the claim is now subject to review based on the entire evidentiary record. REASONS FOR REMAND 1. Service connection for sleep apnea is remanded. This issue is remanded to get missing medical records and for a new VA examination. About the medical records, a May 2008 private (non-VA) sleep study states that the Veteran was referred for the study by a Dr. Martinez. It is not clear if Dr. Martinez was a VA or private doctor. In a July 2015 claim, the Veteran referred to treatment at VA. Thus, it may be that this was a VA doctor. If so, those VA medical records are not available. In either event, a remand to obtain these records is needed. Regarding the need for a VA examination, a private doctor wrote in a December 2012 statement that the Veteran had symptoms of sleep apnea starting “since he returned from his activation to Iraq” and had been “submitted to a great deal of stress while [serving] during [the] Vietnam War,” which was “another contributor to the anatomical factors” associated with the condition. The doctor concluded by stating “[p]lease evaluate him carefully because it is at least as likely as not that his sleep apnea is service connected.” The Board notes that this assessment is questionable for two reasons. First, the Veteran did not serve in Iraq. He served in the 1960s, and there is no indication of subsequent service, whether active duty or Reserve/National Guard. In fact, he wrote in a November 2015 VA Form 21-526EZ that his last assignment was in Vietnam. It is not clear if “Iraq” was a typographical error in the doctor’s report or if the doctor was mistaken about the Veteran’s history. Second, the Veteran does not appear to have elsewhere alleged symptoms starting since service. Thus, the Board is not able to fully understand the basis of this doctor’s opinion. A different private doctor wrote in an October 2015 statement describing the Veteran’s multiple medical conditions, including sleep apnea. The doctor concluded that the Veteran “presents [with] cardiopulmonary . . . disorders which are more probable than not secundary [sic] to his military service performance.” It appears that the doctor intended to include sleep apnea as one of the cardiopulmonary disorders, but this is not clear. Nor did the doctor provide a rationale for this opinion. Accordingly, the Board cannot make a fully-informed decision on the issue at present. 2. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded The Veteran has claimed service connection specifically for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Veterans Appeals (Court) held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled. Therefore, the claim has been recharacterized as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The issue has thus been restated. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD. But, the record reflects conflicting medical evidence as to whether the Veteran has a current diagnosis of PTSD. The Veteran was afforded a VA examination in August 2015, which revealed that he did not meet the criteria for PTSD under the DSM-5, which applies in this claim. However, private treatment records from May 2015 and October 2015 indicate that the Veteran was diagnosed with PTSD. In addition, the record reflects that the Veteran has been diagnosed with other psychiatric disorders. The October 2015 private treatment record indicates diagnoses of major depressive disorder and general anxiety. In addition, an August 2017 VA treatment record indicates a diagnostic impression of persistent depressive disorder. No opinion has been provided as to whether these psychiatric conditions were related to the Veteran’s active service. Thus, regarding these psychiatric conditions, the record contains insufficient information to make a decision on the appeal. Therefore, based on the foregoing, on remand, an addendum medical opinion is needed to clarify the Veteran’s diagnosis and whether any psychiatric disorders are related to service. 3. The claim of service connection for a heart condition claimed as tachycardia, is remanded. Regarding the claim of entitlement to tachycardia, the Veteran submitted a timely notice of disagreement in June 2018 with an October 2017 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, to specifically include records pertaining to the initial diagnosis of sleep apnea. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of sleep apnea. The examiner must opine as to the following: (a.) Whether sleep apnea is at least as likely as not related to an in-service injury, event, or disease, including service in Vietnam. (b.) Whether sleep apnea is at least as likely as not related to in-service herbicide agent exposure. (c.) Whether sleep apnea is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by another medical condition. 3. After obtaining any outstanding records, return the claims file to the VA examiner who conducted the August 2015 examination for PTSD. If the August 2015 examiner is not available, the claims file should be provided to an appropriate medical professional to render the requested opinion. The need for another examination for the claimed PTSD is left to the discretion of the medical professional offering the addendum opinions. The examiner is asked to furnish an opinion with respect to the following: (a.) The examiner must confirm or rule out a diagnosis of PTSD. If it is determined that PTSD has not been present during the period of the claim, the examiner should explain why the diagnosis is not warranted. The examiner should reconcile the August 2015 VA examination report, indicating that the Veteran did not meet the diagnostic criteria for PTSD, with the May 2015 and October 2015 private treatment records, which reflect a diagnosis of PTSD. (b.) If the Veteran is diagnosed with PTSD, the examiner must opine as to whether it is at least as likely as not related to an in-service stressor. (c.) For any diagnosed acquired psychiatric disorders other than PTSD, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that each disorder was incurred in, was caused by, or is otherwise etiologically related to the Veteran’s military service. The examiner should specifically address the diagnoses of major depressive disorder, persistent depressive disorder, and generalized anxiety. 4. Send the Veteran a statement of the case that addresses the issue of service connection for tachycardia. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel