Citation Nr: 20005583 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 12-13 308 DATE: January 23, 2020 ORDER The application to reopen a claim of service connection for sleep apnea is granted. REMANDED Entitlement to service connection for right ear disability is remanded. Entitlement to service connection for nasal disability, to include deviated septum, is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran’s claim of service connection for sleep apnea was originally denied in a March 2011 rating decision on the basis that the disability was not incurred in or caused by service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the March 2011 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for sleep apnea, the absence of which was the basis of the previous denial. CONCLUSIONS OF LAW 1. The March 2011 rating decision that denied the claim of service connection for sleep apnea is final. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. 2. The evidence received since the March 2011 rating decision is new and material and reopening of the claim of service connection for sleep apnea is, therefore, warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to January 1977. These matters initially came before the Board of Veterans’ Appeals (Board) from June 2010 and March 2013 rating decisions. The Veteran testified before a Veterans Law Judge (VLJ) at an April 2016 hearing and a transcript of the hearing has been associated with his claims file. The VLJ who conducted the hearing is no longer employed at the Board and is unable to participate in any further adjudication. In December 2017, a letter was sent to the Veteran which informed him that the VLJ who conducted the April 2016 hearing was no longer employed at the Board and asked him to indicate whether he wanted to attend a new hearing. The Veteran responded later in December 2017 that he did not wish to have another Board hearing. In September 2018, the Board denied the claims of service connection for right ear disability, nasal disability (characterized as deviated septum), and sleep apnea. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court issued a Memorandum Decision in which it set aside the Board’s September 2018 decision, in part, and remanded the issues of entitlement to service connection for right ear disability, nasal disability, and sleep apnea to the Board for further proceedings consistent with the Memorandum Decision. As for characterization of the issues on appeal, the Board notes that the claim of service connection for sleep apnea was adjudicated only on a de novo basis by both the AOJ and the Board in its September 2018 decision. As explained in more detail below, however, a claim of service connection for sleep apnea was denied by way of a final March 2011 AOJ decision. Where the claim in question has been finally adjudicated, the Board must initially determine whether new and material evidence has been submitted with regard to the claim of service connection for sleep apnea. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of this claim. Hickson v. West, 11 Vet. App. 374, 377 (1998). Thus, the Board has included the separate issue of whether new and material evidence has been received to reopen the claim of service connection for sleep apnea. Lastly, in light of the Veteran’s reported symptoms and contentions, and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for deviated septum as a claim of service connection for nasal disability, to include deviated septum. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). The application to reopen a claim of service connection for sleep apnea Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105(d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The AOJ initially denied the Veteran’s claim of service connection for sleep apnea in a March 2011 rating decision on the basis that the disability was not incurred in or caused by service. The Veteran was notified of the AOJ’s March 2011 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the March 2011 decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The pertinent new evidence received since the March 2011 denial of service connection for sleep apnea includes a November 2013 examination report from Otolaryngology Associates of the MidSouth and the Veteran’s testimony during the April 2016 Board hearing. This additional evidence includes a report of continuous nasal symptoms ever since a nasal injury in service and a medical opinion that deviated nasal septum can contribute to sleep apnea. The Veteran contends, in part, that his sleep apnea is associated with his claimed nasal disability. Therefore, the additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran’s claimed sleep apnea may be related to service. The evidence is, therefore, new and material, and the claim of service connection for sleep apnea is reopened. REASONS FOR REMAND Entitlement to service connection for right ear disability, nasal disability, and sleep apnea are remanded. The Veteran contends that he has current nasal disability (including deviated septum), which is related to a nasal injury that he experienced in service when he was hit in the nose by another service member. He has reported that nasal symptoms have continued to worsen in the years since the injury and that he has developed right ear disability and sleep apnea as a result of his nasal disability. In the alternative, the Veteran has reported that he developed ear problems after his tonsils were removed in 1976 (see a November 2009 “Statement in Support of Claim” form (VA Form 21-4138)). Also, the Board notes that he reported “frequent trouble sleeping” on a December 1976 report of medical history form completed for purposes of separation from service. In April 2016, the Veteran submitted medical literature which addresses the potential relationships between deviated nasal septum and injury to the nose and between deviated nasal septum and ear disability. A VA otolaryngologist subsequently reviewed the Veteran’s claims file in September 2017 and March 2018, and provided opinions that his claimed nasal disability was not likely caused by his nasal injury in service and that his claimed right ear disability and sleep apnea were not caused or aggravated by his nasal disability. The physician did not acknowledge or comment upon the medical literature submitted by the Veteran or provide any opinions as to whether his claimed right ear disability and sleep apnea were directly related to service. In its July 2019 Memorandum Decision, the Court explained that the Board had not adequately addressed the medical literature submitted by the Veteran. In light of the points raised by the Court in its Memorandum Decision, the fact that the VA otolaryngologist did not discuss the medical literature submitted by the Veteran, and the fact that the physician did not provide any opinions as to whether the claimed right ear disability and sleep apnea were directly related to service, the Board cannot make a fully-informed decision on the issues of entitlement to service connection for nasal disability, right ear disability, and sleep apnea. Therefore, appropriate medical opinions should be obtained upon remand. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The Veteran suggested during the April 2016 Board hearing that he continued to receive relevant VA treatment. The most recent VA treatment records in the claims file are from the Memphis Vista electronic records system and are dated to July 2013. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for nasal disability, right ear disability, and sleep apnea, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for nasal disability, right ear disability, and sleep apnea from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Memphis Vista electronic records system for the period since July 2013; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any nasal disability experienced by the Veteran since approximately October 2009 (including, but not limited to, deviated nasal septum) at least as likely as not (1) began during active service; or (2) is related to an in-service injury or disease, including the nasal injury that is documented in his service treatment records. The clinician must provide reasons for each opinion given. In this regard, the clinician should acknowledge and comment upon the medical literature submitted by the Veteran in April 2016 (i.e., the deviated septum article from the Mayo Clinic). 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any right ear disability experienced by the Veteran since approximately October 2009 at least as likely as not (1) began during active service; (2) is related to an in-service injury or disease, including the tonsillectomy and the nasal injury that are documented in his service treatment records; (3) is caused by nasal disability (to include deviated nasal septum); OR (4) is aggravated by nasal disability (to include deviated nasal septum). The clinician must provide reasons for each opinion given. In this regard, the clinician should acknowledge and comment upon the medical literature submitted by the Veteran in April 2016 (i.e., the article entitled “The Relationship Between Middle Ear Pressure and Deviated Nasal Septum”). 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any sleep apnea experienced by the Veteran since approximately September 2012 at least as likely as not (1) began during active service; (2) is related to an in-service injury or disease, including the nasal injury that is documented in his service treatment records and the “frequent trouble sleeping” reported on a December 1976 report of medical history form; (3) is caused by nasal disability (to include deviated nasal septum); OR (4) is aggravated by nasal disability (to include deviated nasal septum). The clinician must provide reasons for each opinion given. Katherine K. Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.