Citation Nr: 21071906 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-07 493 DATE: December 1, 2021 ORDER New and material evidence having been submitted, the petition to reopen a claim for entitlement to service connection for sleep apnea, to include as secondary to service connection posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is remanded. FINDING OF FACT 1. In a final decision issued in November 2011, the Regional Office denied the Veteran's claim of entitlement to service connection for sleep apnea. 2. Evidence added to the record since the November 2011 prior final decision is not cumulative or redundant of evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran's claim of entitlement to service connection for sleep apnea. CONCLUSION OF LAW 1. As new and material evidence has been received since the issuance of a final November 2011 decision, the criteria for reopening the claim of entitlement of service connection for sleep apnea have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1986 to February 1987 and January 2006 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter has been before the Board in September 2021. At that time, the Board issued a remand for the issuance of a supplemental statement of the case (SSOC). The matter has now come back before the Board for final adjudication. New and Material Evidence In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West,203 F.3d 1343 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." In determining whether this 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 by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Here, in the November 2011 rating decision, the RO denied the Veteran's claim for service connection for sleep apnea because there was no in-service complaint, treatment, or diagnosis of sleep apnea and the September 2011 VA examination established that there was no objective evidence of sleep apnea. See November 2011 Rating Decision. The Veteran's last final decision for his claim for sleep apnea was in November 2011, as he did not file an appeal to this decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In denying the claim, the RO considered the Veteran's September 2011 VA examination for sleep apnea, VA medical treatment records, service treatment records, and statements in support of the claim. After the last final denial in November 2011, the Veteran filed a claim to reopen in July 2016. The RO denied the claim in a September 2016 rating decision. The Veteran submitted a notice of disagreement (NOD), which the RO continued the denial in the January 2017 SOC and September 2021 SSOC. Evidence submitted since the last final denial includes VA medical treatment records, a private medical opinion, and a VA medical opinion. Upon review of the aforementioned evidence, the Board finds that the VA treatment records, VA examination, and private medical opinion are new and material. This evidence is new because it has never been submitted and it is not redundant of evidence already of record. The evidence is material because it contains evidence addressing causation. See id. Given such, reopening the claim in order, as the evidence is new and material. The reopened claim is further addressed below. REASONS FOR REMAND Regrettably, the Board finds a remand is warranted for the Veteran's claim for entitlement to service connection for sleep apnea. The Board finds a new VA medical opinion is needed prior to making an informed decision. Specifically, the January 2019 VA medical opinion failed to address whether the Veteran's service-connected PTSD aggravated his sleep apnea. The Board finds it is necessary to obtain the above medical opinion prior to issuing a decision on the matter before the Board. Without the medical opinion, the Board is unable to make an informed decision. As such, the matter is REMANDED for the following action: The RO must obtain a new VA medical opinion from a qualified examiner for the Veteran's claim for entitlement to service connection for sleep apnea. The examiner is asked to specifically address the following, with a full rationale provided: Whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's sleep apnea was caused by or a result of his active service. Whether is it at least as likely as not that the Veteran's sleep apnea was proximately due to or aggravated by his service-connected PTSD. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.