Citation Nr: 20037091 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 17-04 328 DATE: June 1, 2020 ORDER As new and material evidence to reopen a claim of entitlement to service connection for sleep apnea has been received, to this limited extent, the appeal as to this matter is granted. REMANDED The claim of entitlement to service connection for sleep apnea, on the merits, as secondary to service-connected type II diabetes mellitus (DM II) and/or posttraumatic stress disorder (PTSD), is remanded. The claim of entitlement to service connection for hypertension, as secondary to service-connected DM II and/or PTSD, is remanded. FINDINGS OF FACT 1. In a January 2015 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s original service connection claim for sleep apnea; although notified of the denial in a letter also dated in January 2015, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 2. New evidence associated with the claims file since the January 2015 denial relates to unestablished facts necessary to substantiate the service connection claim for sleep apnea, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2015 rating decision denying the Veteran’s service connection claim for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. As additional evidence received since the January 2015 denial is new and material, the criteria for reopening the claim for service connection claim for sleep apnea are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1966 to January 1969, including service in the Republic of Vietnam. He died in June 2017. The appellant is his surviving spouse who has been substituted as the appellant in this appeal. This appeal before the Board of Veterans’ Appeals (Board) arose from a May 2016 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied service connection for hypertension, and confirmed and continued a previous denial of service connection for leep apnea. The Veteran filed a notice of disagreement (NOD) in May 2016, the AOJ issued a statement of the case (SOC) in December 2016, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) also in January 2017. In January 2020, the appellant testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Regarding characterization of the matters on appeal, with respect to sleep apnea, it is noted that, regardless of the RO’s actions, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen a previously denied service connection claim on appeal. That matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the current claim has been received—and, in view of the Board’s favorable decision on the request to reopen, as explained below—the Board has characterized that portion of the appeal involving sleep apnea as encompassing both a request to reopen the claim, and the underlying claim for service connection, on the merits. Also, while the Veteran initially included the issue of entitlement to a disability rating higher than 20 percent for DM II in his May 2016 NOD, he specifically excluded that issue from his January 2017 substantive appeal. Accordingly, the AOJ notified the Veteran in a January 2017 letter that the issue had been withdrawn from appeal, but that it could be reinstated if a request were received prior to May 13, 2017, within the one-year appeal period after notification of the May 2016 rating decision. The Veteran did not subsequently request reinstatement of the issue. Thus, while the appellant offered testimony on the issue during the January 2020 Board hearing, as a timely substantive appeal was not received on the issue, it is not on appeal before the Board. See 38 C.F.R. §§ 20.200, 20.202; see also Myers v. Derwinski, 1 Vet. App. 127, 129 (1991) (a substantive appeal perfects the appeal to the Board and frames the issues to be considered). Further, while there was some indication during the January 2020 Board hearing that the service connection claim for sleep apnea had been previously granted in a May 2016 Board decision, the Board observes that the decision received in the claims file in May 2016 was a copy of a Board decision issued in the appeal of another Veteran and appears to have been submitted only in support of the current sleep apnea claim. Thus, the sleep apnea claim was not previously granted and remains on appeal. Request to Reopen Under legal authority in effect at the time of the prior January 2015 denial, and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the January 2015 rating decision, the AOJ denied the Veteran’s original service connection claim for sleep apnea. Relevant evidence then of record consisted of the Veteran’s service treatment records (STRs) (which reflect no finding or diagnosis of sleep apnea); records associated with his application for disability benefits administered by the Social Security Administration (SSA) (which reflect complaints indicative of possible sleep apnea); private treatment records dated through September 2014 (noting the Veteran’s diagnosis of obstructive sleep apnea); and VA treatment records dated through December 2014 (which also reflect a sleep apnea diagnosis). The claim was denied on the basis that the evidence failed to establish the presence of any relationship between claimed sleep apnea to a chronic disease, event, or injury during his active service. Although notified of the January 2015 decision in a letter from the AOJ dated that same month, the Veteran did not appeal the denial of his claim. See 38 C.F.R. §§ 20.200, 20.201. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of denial, and no additional, relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Therefore, the January 2015 denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.52, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require 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. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additional evidence pertinent to the previously denied service connection claim for sleep apnea includes medical treatise evidence submitted by the Veteran in March 2016, (discussing possible medical links between sleep apnea, hypertension, and diabetes); VA treatment records dated through March 2017 (which note the Veteran’s fatigue and inability to sleep well, and his report to his VA provider that symptoms associated with PTSD were affecting his sleep); and private treatment reports dated in March 2015, and March and April 2017 (noting ongoing obstructive sleep apnea diagnoses). The Board finds that the above-described evidence is “new” in that it was not previously before decision makers, and is not cumulative or duplicative of evidence previously of record. The evidence is also “material” in that it is relevant to the service connection claim for sleep apnea, as it provides evidence of ongoing treatment for, and diagnosis of, sleep apnea, and includes medical treatise evidence and the Veteran’s contentions (to include as reflected in reports to his provider), of a possible link between sleep apnea and service-connected DM II and PTSD, to include as a result of PTSD symptoms causing problems with sleep impairment. Thus, the new evidence suggests a basis for awarding service connection—albeit, pursuant to an alternative theory of entitlement not previously considered. Given the “low threshold” standard of Shade, and presuming the credibility of the new evidence, the Board finds that additional evidence received since the final January 2015 denial is new and material within the meaning of 38 C.F.R. § 3.156(a), warranting reopening of the service connection claim for sleep apnea. REASONS FOR REMAND The Board’s review of the claims file reveals that further AOJ action on the reopened service connection claim for sleep apnea, as well as the service connection claim for hypertension, prior to appellate consideration, is warranted. In his March 2016 claim, the Veteran asserted that his claimed sleep apnea and hypertension are due to his service-connected DM II and PTSD. In support of his claim, the Veteran submitted medical treatises discussing potential medical links between DM II and hypertension, and between sleep apnea, hypertension, and DM II. Additionally, as noted, his VA treatment records document reported complaints of PTSD symptoms resulting in sleep impairment. With respect to the sleep apnea claim, the Veteran was not afforded a VA examination nor was a medical opinion obtained to address the etiology of the disability. However, given the evidence discussed in connection with the decision to reopen and above, the Board finds that the criteria for obtaining a VA medical opinion addressing the etiology of the late Veteran’s leep apnea are met. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). As for the hypertension claim, the Veteran was afforded a VA examination in connection with the claim in May 2016. The examiner opined that the Veteran’s hypertension was less likely than not proximately due to or the result of service-connected disability. In doing so, the examiner noted that when diabetes causes hypertension, it does so via renal disease, but since the Veteran did not have renal disease, his hypertension was primary. With respect to PTSD, the examiner stated that there was insufficient evidence to consider PTSD or depression as a cause of hypertension in the Veteran’s particular case, where he had other risk factors. However, the VA examiner did not address the Veteran’s reports of PTSD symptoms resulting in sleep impairment. The examiner also did not provide a clear opinion as to whether the Veteran’s hypertension was aggravated by his service-connected DM II and/or PTSD. Given these deficiencies, remand of this claim is warranted to obtain an adequate etiology opinion, fully addressing all evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that if VA provides a medical , it must ensure that the examination provided, or opinion obtained, is adequate for purposes of the determination being made). Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to any remaining claim(s) on appeal), explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining service connection claims on appeal. The matters are hereby REMANDED for the following action: 1. Send to the appellant and her representative a letter requesting that the appellant provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claims on appeal that is not currently of record, to include any private (non-VA) records. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide a claim within the one-year period). 2. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain, from an appropriate physician, opinions addressing the relationship, if any, between the late Veteran’s diagnosed sleep apnea and hypertension, and his service-connected DM II and/or PTSD. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the opinions should reflect consideration of the Veteran’s documented medical history and the lay assertions of the Veteran and the appellant. Based on a review of the claims file, with respect to diagnosed sleep apnea and hypertension, for each disability, the physician should render opinions, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability was caused OR aggravated (worsened beyond natural progression) by the Veteran’s service-connected type II diabetes mellitus and/or PTSD, to include by means of any medications used to treat either disability. Both causation and aggravation must be addressed. If aggravation of either disability is found, the physician should attempt to quantify the extent of additional disability resulting from aggravation, to include by identifying (to the extent possible), the baseline level of disability prior to aggravation. In addressing the above, the physician must consider and discuss all relevant medical evidence and other objective evidence, to include VA medical records documenting the Veteran’s reported complaints of sleep impairment resulting from PTSD symptoms, and the medical treatises submitted by the Veteran in in March 2016 which discuss possible medical links between DM II and hypertension, and between sleep apnea, hypertension, and DM II. The physician must also consider and discuss all pertinent lay assertions of record. In this regard, the physician is advised that the Veteran was competent to report his symptoms and history and that the appellant is competent to report her observations of the Veteran, and the lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly stated rationale for the conclusions reached must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above-requested actions, and any additional action(s) deemed warranted adjudicate the service connection claims on appeal, on the merits, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.