Citation Nr: 21067074 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-50 318A DATE: November 3, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. An unappealed May 2013 rating decision denied service connection for obstructive sleep apnea. 2. The additional evidence received since the May 2013 rating decision relates to previously unestablished facts necessary to substantiate the claim for service connection for obstructive sleep apnea. CONCLUSIONS OF LAW 1. The May 2013 rating decision that denied service connection for obstructive sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the May 2013 rating decision; the claim for service connection for obstructive sleep apnea is reopened. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 1992 August 2008 to August 2009. This current matter comes to the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. New and Material Evidence Sleep Apnea Where a claim has been finally adjudicated, new and material evidence sufficient to reopen the previously denied claim is required. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously received by agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly received evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether the new evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the AOJ's action, the Board must address the question of whether new and material evidence has been presented to reopen a claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In May 2013, the RO denied service connection for obstructive sleep apnea on the basis that the evidence of record did not show a link between this disability and the Veteran's military service. In the year following that rating decision, the Veteran did not submit any statements expressing disagreement with the denial of service connection for obstructive sleep apnea, nor did he submit any documents concerning the claim that could be considered new and material evidence. Thus, the May 2013 rating decision became final. 38 C.F.R. § 20.1103. Evidence received since the May 2013 rating decision includes VA treatment records and statements from the Veteran. As noted above, the credibility of this evidence is presumed. Accordingly, it is found new and material to his claim, and his claim for service connection for sleep apnea is reopened. REASONS FOR REMAND Service connection sleep apnea The Veteran contends that he has sleep apnea related to his active duty. His service treatment records (STRs) document reports of sleeplessness in June 2009 and problems sleeping or still feeling tired noted (according to a July 2009 post-deployment health assessment. He also reported going to sick call for these complaints and reported that he was still bothered by his sleep difficulties. He contends that his sleep apnea is related to his in-service exposure to burn pits while serving in the Gulf War. See August 2017 Notice of Disagreement (NOD). The Veteran was examined in November 2012, at which time the examiner diagnosed obstructive sleep apnea, which onset in 2010. The examiner recorded the Veteran's reports of symptoms of persistent daytime hypersomnolence and evidence of chronic respiratory failure with carbon dioxide retention. The examiner indicated that medical evidence was not available for review as part of the examination and did not provide an etiological opinion for the diagnosed obstructive sleep apnea. In an addendum VA opinion dated in May 2013, the examiner opined that it was less likely than not that the Veteran's sleep apnea was caused by, or a result of, his complaints of sleeplessness noted in June 2009 or his reports of problems sleeping and still feeling tired, which were recorded on his July 2009 post-deployment health assessment. As rationale for this opinion, the examiner discussed the way in which sleep apnea is diagnosed but did not actually address the Veteran's contentions or symptoms. The examiner opined that symptoms are not sufficient to make a diagnosis and that objective diagnostic testing is necessary before obstructive sleep apnea can be diagnosed. However, the examiner did not appear to consider whether the symptoms, which appear to be consistent with those associated with sleep apnea, were indicative of sleep apnea beginning during the Veteran's active service. The examiner noted that the Veteran's obstructive sleep apnea did not clearly and unmistakably exist prior to service. The Veteran reported sleep difficulties between his periods of active service, but his August 2008 examination upon re-entry to the service did not include any notation of sleep issues. The examiner indicated that the Veteran's sleep apnea was properly diagnosed after the Veteran left the service and that, as such, military service did not aggravate his sleep apnea because it did not exist prior to his service. While this portion of the examination opinion is helpful, the May 2013 examiner failed to address the Veteran's contentions and failed to adequately consider the evidence of record in providing an opinion. The Board finds that the medical evidence of record is insufficient to make a determination on the matter at this time. The November 2012 VA examination and May 2013 addendum opinion failed to provide an adequate opinion and failed to address both the evidence of record and the Veteran's contentions. In particular, no VA examiner has addressed the Veteran's reports of exposure to burn pits and his reports of sleep difficulties beginning in service prior to his 2011 sleep apnea diagnosis and his reports that these difficulties have continued to the present. Given the lack of sufficient medical evidence to make a decision on this matter, the Board finds that the Veteran should be afforded a VA examination to address the nature and etiology his sleep apnea disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, this matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records and associate them with the claims file. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Then, obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's obstructive sleep apnea. The examiner should review the claims file and indicate such on the examination report. After a review of the claims folder, as well as an interview with the Veteran, the examiner is asked to: Opine whether the Veteran's diagnosed sleep apnea onset in, or is otherwise related to, his service or any incident therein, to include his in-service complaints of sleeplessness in June 2009 and report of problems sleeping or still feeling tired on his July 2009 post-deployment health assessment, as well as his reports of exposure to environmental hazards such as burn pits during his service in Southwest Asia. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A complete rationale must be provided for all opinions expressed. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to speculation, he/she must provide an explanation as to why this is so. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.