Citation Nr: 21003468 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-18 096 DATE: January 21, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. An August 2010 rating decision denied the Veteran's claim of entitlement to service connection for sleep apnea. 2. Evidence received since the August 2010 rating decision is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2010 rating decision denying the claim of entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7104 ; 38 C.F.R. § 20.1103. 2 . Since the August 2010 Board decision, new and material evidence to reopen the claim for entitlement to service connection for sleep apnea has been received and the claim is reopened. 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 February 1983 to May 1983, in November 1999, and from August to December 2002. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. The Veteran seeks entitlement to service connection for obstructive sleep apnea, arguing that the condition developed, but was not diagnosed, during active service. The Board is required to address petitions to reopen previously denied claims on the basis of new and material evidence in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the Agency of Original Jurisdiction (AOJ) may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will proceed in the following decision to adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA. 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 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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The Veteran’s claim was denied by rating action in August 2010 on the basis that sleep apnea was not incurred in service. The Veteran did not appeal that decision in the statutory time period, and the decision became final. See 38 C.F.R. §§ 3.156, 20.1103. In March 2015, the Veteran filed a new claim for service connection for sleep apnea. The Veteran provided evidence not previously submitted to VA in the form of updated medical records, testimony at a hearing before the Board, and lay statements from another service member who stated that he recalled the Veteran snoring and gasping for air during active duty while on deployment in Kuwait. The evidence is new in that it has not previously been considered by VA, and it is material in that it relates directly to whether the Veteran’s condition was incurred during active service. New and material evidence having been received, the claim for service connection for sleep apnea is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. Turning to the merits of the underlying claim for service connection, a preliminary review of the evidence shows the Veteran has not been afforded a VA examination for his claim. As a part of the duty to assist claimants, VA must provide a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); 38 U.S.C. § 5103A (d)(1). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the nature and etiology of his sleep apnea condition. The examiner should review the Veteran’s complete claim file, and provide an answer to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was incurred during active service? The examiner’s attention is invited to the Veteran’s testimony before the Board that he snored, had difficulty breathing during sleep, was fatigued during the day, and experienced elevated blood pressure during active duty, prior to his sleep apnea diagnosis in 2003. The examiner’s attention is further invited to a lay statement by the Veteran’s former active duty roommate who stated he recalled the Veteran snoring and stopping breathing during sleep to a great extent during a 2002 deployment to the Middle East. See February 2017 Buddy / Lay Statement. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, Associate 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.