Citation Nr: 21061632 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-52 921 DATE: October 4, 2021 ORDER The application to reopen a claim of entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. A June 2014 rating decision earlier denied the Veteran's claim of service connection for sleep apnea; the claimant did not appeal this decision; he did not submit new and material evidence within the one-year appeal period of this decision; and VA did not subsequently obtain and associate with the claim's file VA treatment records generated within the one-year appeal period of this decision which treatment records are new and material evidence. 2. Evidence received since the June 2014 rating decision is new, it is related to an unestablished fact necessary to substantiate the claim of service connection for sleep apnea and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claim of entitlement to service connection for sleep apnea is new and material and therefore the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the United States Army from April 2002 to March 2010 which service included service in Iraq during the Persian Gulf War. In June 2021, the Veteran testified at a virtual hearing before the undersigned and a transcript of that hearing has been associated with the claims file. The Application to Reopen As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also held that for purposes of finality VA treatment records dated during the appeal period are consider in VA's possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA's duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. Thereafter, in Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020) the United States Court of Appeals for the Federal Circuit removed the sufficient knowledge of the existence of the VA records requirement in Turner. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above criteria in mind, the record shows that a June 2014 rating decision earlier denied the Veteran's claim of service connection for sleep apnea. The rating decision denied the claim because, in substance, the September 2017 VA examiner opined that his post-service sleep apnea was not due to his military service. The Veteran did not appeal the rating decision. The Board also finds that new and material evidence was not received by the RO in the first year following the issuance of the decision even though VA treatment records and examinations were associated with the record during this time-period because they do not relate to his claim of service connection for sleep apnea. See 38 C.F.R. § 3.156(b). Similarly, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the rating decision that were new and material evidence because the records associated with the claims file during this time do not relate to his claim of service connection for sleep apnea and are therefore not pertinent evidence. See Lang, supra; Turner, super. Accordingly, the Board finds that the June 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the final June 2014 rating decision, the Veteran's ex-representative filed with the VA, among other things, a Brief received by VA in January 2019 in which it is argued that the Veteran's sleep apnea was caused or aggravated by his service-connected posttraumatic stress disorder (PTSD) and/or the obesity which is a residual of the appellant's service-connected right knee disorders. Also, in January 2019, the Veteran's ex-representative filed with VA medical articles entitled Sleep Events Among Veterans with Combat-Related Posttraumatic Stress Disorder and The Complex Relationship between Weight and Sleep Apnea. The Board finds the new theory of entitlement found in the Veteran's ex-representative's Brief along with the supporting medical articles, none of which were part of the record at the time of the June 2014 rating decision, is new and material evidence and the claim is reopened because, together, they raise a reasonable possibility of substantiating the claim. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. As to the newly reopened claim of service connection for sleep apnea, as discussed above, the Veteran know claims it is caused or aggravated by his service-connected PTSD and/or the obesity which is a residual of the service-connected right knee disorders. Tellingly, the record shows that the Veteran is service-connected for PTSD and right knee disorders. The record also shows that the regional office (RO) in September 2017 obtained an etiology opinion. However, the September 2017 examiner did not, and could not have, addressed the Veteran's new second service connection claim because it was not raised at that time. Therefore, the Board finds that a remand is required to obtain another etiology opinion that addresses all theories of entitlement. See 38U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). In providing the opinion and when again adjudicating the appeal, the examiner and RO should be mindful of the fact that the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) redefined aggravation to know include temporary flare-ups. Similarly, in providing the opinion and when again adjudicating the appeal, the examiner and RO should be mindful of the fact that in Walsh v. Wilkie, 32 Vet. App. 300, 306-307 (2020), the Court held that service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. Also, in providing the opinion and when again adjudicating the appeal, the examiner and RO should be mindful of the fact that in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) United States Court of Appeals for the Federal Circuit held that in appeals, like the current appeal, the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases in which Veterans served in the Persian Gulf since August 2, 1990. While this issue is in Remand status the RO should also obtain and associate with the record any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address him claim of service connection for sleep apnea. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea had its onset directly during the Veteran's service or is otherwise related to any event or injury during including any toxins he may have been exposed to during his service in Iraq during the Persian Gulf War. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected right knee disorders caused him to gain weight because he could not exercise. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected right knee disorders aggravated any weight gain because he could not exercise. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea was caused by PTSD including the medication he takes to treat it and/or any weight gain caused by the Veteran being unable to exercise due to his service-connected right knee disorders. e. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea was aggravated by PTSD including the medication he takes to treat it and/or any weight gain caused by the Veteran being unable to exercise due to his service-connected right knee disorders. f. If a nexus to his service cannot be established for any sleep disorder, please provide an opinion as to whether the disability pattern is consistent with any of the following: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. g. If, after reviewing the claims file, you determine that the Veteran's disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. In providing answers to the above questions the examiner should specifically consider the Veteran's service treatment records. In providing answers to the above questions the examiner should specifically consider the Veteran's competent lay claims regarding observable adverse symptomatology. In providing answers to the above questions the examiner should specifically consider and discuss the two articles received by VA in January 2019 - Sleep Events Among Veterans with Combat-Related Posttraumatic Stress Disorder and The Complex Relationship between Weight and Sleep Apnea. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions the examiner should be aware of the facts that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In providing answers to the above questions the examiner should be aware of the facts that the Court held in Walsh, supra, that service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. (Continued on the next page) If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.