Citation Nr: 21075123 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-33 190 DATE: December 17, 2021 ORDER New and material evidence having been submitted for a claim for entitlement to service connection for a sleep disorder, the claim is reopened, and to this extent only, the claim is granted. REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement for rating in excess of 10 percent for pseudofolliculitis barbae (PFB), prior to July 28, 2017, is remanded. Entitlement for rating in excess of 30 percent for PFB, from July 28, 2017, is remanded. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux (GERD) is remanded. FINDING OF FACT 1. An October 2009 rating decision denied the Veteran's claim for service connection for a sleep disorder. The Veteran did not file a timely substantive appeal (VA Form 9) within 60 days of the date of issuance to the Veteran of an April 2011 Statement of the Case (SOC), and that denial became final. 2. Evidence received since the last rating decision denial of service connection for a sleep disorder relate to unestablished facts necessary to substantiate the claim and does raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received since the last final denial, and the Veteran's claim for service connection for a sleep disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service in the United States Navy from July 2005 to July 2009. 1. New and material evidence having been submitted for a claim for entitlement to service connection for a sleep disorder, the claim is reopened, and to this extent only, the claim is granted. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-240 (1995). To that end, the Board notes that the issue of entitlement to service connection for a sleep disorder was the subject of a final rating decision dated October 2009. 38 C.F.R. §§ 3.104, 20.302, 20.1103. To this rating decision, the Veteran filed a timely notice disagreement in November 2009, and a SOC was issued in April 2011. However, the record is silent from April 2011 to May 2012, when the Veteran submitted a VA Form 9 for the claims. The Board finds that the May 2012 VA Form 9 is outside the 60-day period allotted for substantive appeals from the date of the SOC; as such, the Board must find that the VA Form 9 to be untimely, and the denial of the claim for service connection for a sleep disorder became final. New and material evidence has been received since the October 2009 that raises a reasonable possibility of substantiating the claim of entitlement to service connection for this issue. 38 C.F.R. § 3.156. Here, the Board notes that the RO's initial denial of the Veteran's claim was ostensibly based on the lack of finding of a current sleep disability and the lack of any evidence of an inservice incurrence of a sleep disorder. To this end, the Board finds that new evidence acquired since the last denial has demonstrated credible evidence regarding both. As such, the claim is considered reopened. Specifically, the Board notes that since that last denial, the Veteran has been service-connected for a psychiatric disability, back disability, and headaches. To this end, the Veteran has asserted during examinations that pain from such disabilities causes him to wake up at night and disturbs his sleep. In this regard, at every psychiatric evaluation for his service-connected psychiatric disability, the Veteran has been noted to suffer from sleep disturbance as a result of his psychiatric disorders. Further, the Veteran has also presented new lay statements regards his sleep difficulties arising during his active service. Specifically, in lay statements, he notes that his family noticed that he would stop breathing during his sleep or would snore. The Board finds that while such evidence is not dispositive of the claim for service connection, such is sufficient to overcome the low threshold to reopen the claim for service connection. REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder is remanded. The Board notes that the Veteran has not been provided a VA examination with regard to the claims for service connection for a sleep disorder. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With specific regards to the Veteran's claim for a sleep disturbance, the Board notes that in the course of the claims period, the available evidence have consistently noted some type of complaint for sleep interruption or disturbance, outside of the diagnosed sleep apnea of record, to include secondary to his psychiatric disability and physiological disabilities. While no formal opinion regarding the nature and etiology of these sleep disturbances have been assessed, or an actual diagnosis, the Board finds that the medical evidence is sufficient to overcome the low threshold necessary to trigger VA's duty to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that the Veteran has consistently noted his sleep disorder started in service and has persisted until the present, to include aggravated by the pain caused by his phycological disabilities, to include his back. The Board finds that providing the Veteran with the benefit of the doubt, the VA shall afford the Veteran an opportunity to appear at an examination to assess the nature and etiology of his claimed sleep disability. 2. Entitlement to service connection for sleep apnea is remanded. The Board finds that with regards to both the Veteran's claim for service connection for sleep apnea, the most recent VA examination afforded to the Veteran in May 2016 to be inadequate, and a remand is required. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.15 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, the Board finds that, as the January 2020 VA examination is found to be inadequate, a remand is necessary for the VA to fulfil its duty to the Veteran. Here, the Board finds that the VA examination only address the Veteran's secondary claims with regards to any nexus between the Veteran's psychiatric disability and his sleep apnea. However, since that opinion, the Veteran has explicitly asserted that his sleep apnea and/or sleep disturbance began during his active service. To this end, the Veteran, in a September 2018 statement noted that he was told that he would stop breathing when he slept, and that he had issues with snoring while still on active service. As such, the Board finds that the May 2016 VA opinion to be inadequate, as it fails to address direct service connection. 3. Entitlement for rating in excess of 10 percent for PFB, prior to July 28, 2017, is remanded. 4. Entitlement for rating in excess of 30 percent for PFB, from July 28, 2017, is remanded. 5. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux (GERD) is remanded. The Veteran last underwent a VA examination for his PFB and GERD in July 2018 and October 2018, respectively. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of a worsening condition regarding these conditions since that examination has been set forth by the Veteran. When available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examinations remote, but the examinations appear to no longer indicate the Veteran's current level of disability. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran's claims for increased ratings for his PFB and GERD. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. Then, schedule the Veteran for a VA examination to assess the nature and etiology of the claimed sleep disorder, to exclude sleep apnea. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiner should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner must consider the Veteran's lay statements regarding the incurrence of the disability and continuity of symptomatology since service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any sleep disturbance and/or sleep disorder is related to any aspect of active service, to include the Veteran's contention of incurrence during service. If the sleep disorder is not found to be related to service, the examiner should opine whether if it is at least as likely as not (50 percent or greater probability) that any sleep disorder is caused or aggravated by any service-connected back or psychiatric disability. 3. Then, schedule the Veteran for a VA examination to assess the nature and etiology of the claimed sleep apnea. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiner should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner must consider the Veteran's lay statements regarding the incurrence of the disability and continuity of symptomatology since service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is related to any aspect of active service, to include the Veteran's contention of incurrence during service. If sleep apnea is not found to be related to service, the examiner should opine whether if it is at least as likely as not (50 percent or greater probability) that any sleep disorder is caused or aggravated by any service-connected back or psychiatric disability. The examiner must explicitly note consideration of the Veteran's lay statements regarding symptoms during active service. 4. Then, schedule the Veteran for a VA examination to assess the current nature and severity of service-connected PFB. The examiner must review the claims file and should note that review in the report. The examiner should provide a complete rationale for all conclusions reached. The examiner must explicitly address the functional impairments, if any, caused by the Veteran's disability, both occupationally and socially. 5. Then, schedule the Veteran for a VA examination to assess the current nature and severity of service-connected GERD. The examiner must review the claims file and should note that review in the report. The examiner should provide a complete rationale for all conclusions reached. The examiner must explicitly address the functional impairments caused by the Veteran's GERD disability, both occupationally and socially. If the examination can be conducted during a period in which pain medication has not been used, such would be optimal. If it is not possible to evaluate the Veteran while not on medication, the examiner is asked to explicitly speak to the nature and severity of the Veteran's GERD disability, without any type of medication, to include over-the-counter medication. If the examiner cannot speak to the severity of the Veteran's condition without medication, without resorting to mere speculation, the examiner must explicitly state such in the findings. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.