Citation Nr: 21068666 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-41 601 DATE: November 12, 2021 ORDER As new and material evidence has been submitted sufficient to reopen the previous denied claim for service connection for obstructive sleep apnea (OSA), the application to reopen the claim is granted. The appeal seeking entitlement to service connection for restless leg syndrome, left has been withdrawn. The appeal seeking entitlement to service connection for restless leg syndrome, right has been withdrawn. The appeal seeking entitlement to service connection for blood in urine has been withdrawn. The appeal seeking entitlement to service connection for bilateral hearing loss has been withdrawn. The appeal seeking entitlement to service connection for tinnitus has been withdrawn. The appeal seeking entitlement to service connection for hypertension has been withdrawn. The appeal seeking entitlement to a disability rating in excess of 40 percent for a lumbar spine disorder has been withdrawn. The appeal seeking entitlement to a disability rating in excess of 10 percent for left lower extremity decreased sensation has been withdrawn. The appeal seeking entitlement to a disability rating in excess of 10 percent for right lower extremity decreased sensation has been withdrawn. The appeal seeking entitlement to a disability rating in excess of 10 percent for a right knee disorder has been withdrawn. The appeal seeking entitlement to a total disability rating based on individual unemployability (TDIU) has been withdrawn. REMANDED Entitlement to service connection for OSA is remanded. FINDINGS OF FACT 1. An August 2012 rating decision denied service connection for OSA and the Veteran timely appealed this decision. A statement of the case (SOC) was issued September 2014; however, the Veteran did not file a substantive appeal and the August 2012 decision became final. 2. Evidence received since the August 2012 decision relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for OSA. 3. During the November 2021 Board hearing, the Veteran stated on the record that he wanted to withdraw the appeal with respect to the claims for service connection bilateral restless leg syndrome, blood in urine, bilateral hearing loss, tinnitus, hypertension; the claims for increased ratings for the lumbar spine, decreased sensation of the bilateral lower extremities, and the right knee; and the claim for entitlement to a TDIU. CONCLUSIONS OF LAW 1. The August 2012 rating decision that denied the claim of service connection for OSA is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. Evidence received since the August 2012 rating decision is new and material and serves to reopen the Veteran's claim of entitlement to service connection for OSA. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for restless leg syndrome, left have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 4. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for restless leg syndrome, right have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 5. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for blood in urine have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 6. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 7. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 8. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 9. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a disability rating in excess of 40 percent for a lumbar spine disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 10. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a disability rating in excess of 10 percent for left lower extremity decreased sensation have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 11. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a disability rating in excess of 40 percent for right lower extremity decreased sensation have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 12. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a disability rating in excess of 10 percent for a right knee disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 13. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a TDIU have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to July 1992. In November 2021, the Veteran was provided a hearing before the undersigned Veterans Law Judge (VLJ). New and Material Evidence Generally, a claim that has been denied in an unappealed Regional Office (RO) decision or an unappealed Board of Veterans' Appeals (Board) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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 Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted sufficient to reopen the previous denied claim for service connection for OSA. In August 2012, the AOJ denied service connection for OSA. The basis for the denial of service connection was that there was no link between OSA and the Veteran's military service. The Veteran timely appealed that decision and a SOC was issued in September 2014; however, the Veteran did not file a substantive appeal and the August 2012 decision became final. In December 2013, the Veteran submitted his current claim for service connection for a lumbar spine disorder. Such claim has been construed as a request to reopen the previously denied claim for a lumbar spine disorder. The pertinent evidence of record at the time of the August 2012 rating decision included the Veteran's service treatment records (STRs), VA and private treatment records, and January 2012 Buddy Statements. The pertinent evidence received since that rating decision includes the Veteran's November 2021 Board hearing testimony that he was told by his physicians that his OSA may be related to his posttraumatic stress disorder (PTSD) and/or back disorder. This evidence is new because it was not previously associated with the claims file. This evidence also relates to unestablished facts necessary to substantiate the Veteran's claims for service connection for OSA. Accordingly, the Veteran's claim for service connection for OSA is reopened. Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisiov. Shinseki, 25 Vet. App. 45, 47 (2011). In the present case, during the November 2021 Board hearing, the Veteran expressed a desire to withdraw the appeal with respect to the claims for service connection for bilateral restless leg syndrome, blood in urine, bilateral hearing loss, tinnitus, hypertension; the claims for increased ratings for the lumbar spine, decreased sensation of the bilateral lower extremities, and the right knee; and the claim for entitlement to a TDIU. The undersigned VLJ confirmed with the Veteran that he understood that by withdrawing these issues, he would have to file a new claim in order to seek service connection in the future, and if awarded, any effective date would be assigned from the date of the new claim, as VA would take no further action on the current claims. The undersigned VLJ further confirmed with the Veteran's representative that he had spoken with the Veteran prior to the hearing and that it was their desire to withdraw these issues. Thereafter, the Veteran indicated that he still wished to withdraw those issues and no further testimony was taken on them. Accordingly, the Board finds that the withdrawal of the issues of entitlement to service connection for bilateral restless leg syndrome, blood in urine, bilateral hearing loss, tinnitus, hypertension; the claims for increased ratings for the lumbar spine, decreased sensation of the bilateral lower extremities, and the right knee; and the claim for entitlement to a TDIU was explicit, unambiguous, and done with a full understanding of the consequences of such action and, therefore, the standards as outlined in Acree and DeLisio were met. Thus, there remains no allegation of error of fact or law for appellate consideration and the Board does not have jurisdiction to review the appeal as to those issues. Likewise, the appeal as to those issues is dismissed without prejudice. REASONS FOR REMAND 1. Entitlement to service connection for OSA is remanded. The evidence of record shows a current diagnosis for OSA. The lay statements of record indicate that the Veteran began snoring and stopped breathing at night during service. See January 2012 Buddy Statements. These statements raise the question of whether the Veteran's OSA may have begun during active duty service and was manifested by symptoms of snoring and breathing issues. The Veteran also testified that his treating physicians have indicated that his OSA developed as a result of his PTSD and/or as a result of weight gain from his service-connected lumbar spine disorder. The Veteran has not yet been afforded VA examinations for this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the Veteran must be provided a VA examination and medical opinion consistent with the directives herein. As indicated above, during the November 2021 Board hearing, the Veteran testified that his treating physicians had indicated his OSA developed as a result of his PTSD and/or as a result of weight gain from his service-connected lumbar spine disorder. He also indicated that he had recently submitted a medical opinion from his treating physician relating his OSA to PTSD. A review of the claims file does not show that this medical opinion is of record. Accordingly, on remand, the Agency of Original Jurisdiction (AOJ) should conduct additional development and afford the Veteran an opportunity to submit any outstanding private medical opinions/treatment records. The matters are REMANDED for the following actions: 1. With the Veteran's assistance, attempt to obtain all outstanding VA and non-VA treated records regarding his OSA. If VA attempts to obtain any outstanding records which are unavailable, the Veteran and his representative should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Afford the Veteran an opportunity to submit any medical opinions that he may have from his treating physicians regarding the etiology of his OSA. 3. Following the records development above, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his OSA. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examinations. All indicated studies should be completed. All findings must be fully reported. a) The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's OSA is related to his active duty service. In rendering the above opinion, the examiner must specifically consider and discuss the January 2012 Buddy Statements of record that indicate that the Veteran snored during service and would stop breathing in his sleep. b) If, and only if, the response to paragraph (a) is negative, the examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's OSA was caused or aggravated by his service-connected disabilities, to include his lumbar spine disorder and/or posttraumatic stress disorder (PTSD). Aggravation in this context is defined as any increase in disability. c) The examiner must also provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's service-connected disabilities (to include his lumbar spine disorder and/or PTSD) caused or aggravated his obesity and, if so, whether the Veteran's obesity is a substantial factor in the development of his OSA, such that OSA would not have occurred but for the obesity. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. (Continued on the next page) A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.