Citation Nr: 21076557 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-53 060 DATE: December 27, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for anal erosion has been withdrawn. Entitlement to a compensable disability rating for onychomycosis bilateral great and little toes has been withdrawn. New and material evidence having been received; the claim for entitlement to service connection obstructive sleep apnea is reopened. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. During the July 2021 Board hearing the Veteran stated he wished to withdraw his claims for a disability rating in excess of 10 percent for anal erosion and a compensable disability rating for onychomycosis bilateral great and little toes. 2. A February 2010 rating decision denied entitlement to service connection for sleep apnea; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the February 2010 rating decision. 3. Evidence received since the February 2010 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for sleep apnea. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to a disability rating in excess of 10 percent for anal erosion by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim for entitlement to a compensable disability rating for onychomycosis bilateral great and little toes by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The February 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 4. New and material evidence having been received; the claim for entitlement to service connection for sleep apnea is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Withdrawn 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. Id. In the present case and at hearing before the Board, the Veteran has withdrawn his appeal as to his claims for a disability rating in excess of 10 percent for anal erosion and a compensable disability rating for onychomycosis bilateral great and little toes. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and entitlement to a disability rating in excess of 10 percent for anal erosion and entitlement to a compensable disability rating for onychomycosis bilateral great and little toes are dismissed. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Entitlement to service connection for obstructive sleep apnea is reopened In this case, the RO denied service connection for sleep apnea in a February 2010 rating decision because there was no evidence of an in-service event or a nexus to service. Thus, service connection for sleep apnea could not be established. The Veteran was notified of the decision in a letter dated February 2010. The Veteran did not file a notice of disagreement with the February 2010 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the February 2010 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final February 2010 rating decision includes multiple buddy statements received in February 2017 which chronicle the Veteran's symptoms of snoring, interrupted breathing, and daytime sleepiness in service. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the buddy letters raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for sleep apnea, and the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Service connection for sleep apnea is remanded The Veteran filed a claim to reopen a previously denied claim for service connection for obstructive sleep apnea in February 2017. During the July 2021 Board hearing the Veteran's representative asked to expand the Veteran's claim for entitlement to service connection for sleep apnea to include claims for other respiratory disorders, to include sinusitis and rhinitis. The Board notes the RO has separately denied, and the Veteran did not appeal his claims for service connection for upper respiratory infection, sinusitis, and allergic rhinitis. As these separately identified medical conditions have already been adjudicated, re-characterization to expand the claim for service connection for sleep apnea to include these disabilities is not appropriate in this case. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). While the Veteran is a non-expert, he is shown to have been competent to identify that he sought service connection specifically for sleep apnea with CPAP on his February 2017 claim. The Veteran has maintained a diagnosis of sleep apnea for over a decade for which he has utilized a CPAP for treatment. The Veteran previously made claims for service connection for upper respiratory conditions, to include sinusitis and rhinitis. Given the specificity of the Veteran's discrete February 2017 claim for sleep apnea with CPAP, coupled with his knowledge of his previously adjudicated claims for other upper respiratory conditions, to include rhinitis and sinusitis, it is an unreasonable expectation to have developed and processed this claim to include the other upper respiratory conditions. Accordingly, the Board will not expand the Veteran's claim to include other upper respiratory conditions, to include rhinitis and sinusitis. Regarding the Veteran's claim for entitlement to service connection for sleep apnea, remand is required to provide the Veteran with a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination for sleep apnea. The record shows the Veteran was diagnosed with severe sleep apnea in 2006. Additionally, the Veteran has provided multiple buddy statements attesting to the Veteran's significant snoring, daytime tiredness, and interrupted breathing in service. Furthermore, the Veteran has competently and credibly stated that he has suffered these symptoms since service and was not aware his symptoms were indicative of sleep apnea until receiving information from a friend. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should specifically consider the buddy reports chronicling the Veteran's significant snoring, daytime tiredness, and interrupted breathing in service. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, Associate 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.