Citation Nr: 21005291 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 20-24 375 DATE: February 1, 2021 ORDER Reopening of the previously denied claim for service connection for hypertension is granted. Reopening of the previously denied claim for service connection for diabetes mellitus is granted. REMANDED The claim for service connection for hypertension is remanded. The claim for service connection for diabetes is remanded. The claim for service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. An unappealed April 2014 rating decision denied service connection for hypertension and diabetes mellitus, type II, on the grounds that no nexus to service was shown. 2. Evidence received since April 2014 raises the reasonable possibility of a connection to service or a service-connected disability, or requires development of evidence related to such connection. CONCLUSIONS OF LAW 1. The April 2014 rating decision which denied service connection for hypertension and diabetes is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to open the previously denied claims for service connection for hypertension and diabetes. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army on active service from September 1960 to December 1962. He served an additional four years in the U.S. Army Reserves, but any dates of annual training or active duty for training have not been verified. These matters arise from a February 2017 rating decision of the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in October 2020. A transcript of the hearing is present in the claims file. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing 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 United States Court of Appeals for Veterans Claims (Court) interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the unappealed April 2014 rating decision, the agency of original jurisdiction (AOJ) denied service connection for hypertension and diabetes on the grounds that no nexus to service was shown for either condition. The Veteran did not appeal the April 2014 rating decision and it became final. With regard to hypertension, VA treatment records dated after 2014 include December 2016 notations that currently diagnosed sleep apnea may aggravate hypertension. Such were not of record, or available, at the time of the April 2014 decision, and hence are new. They are also clearly material, as they address the unestablished fact of a nexus. Regarding diabetes, the Veteran’s representative made reference to “exposures” in service, but did not specify what substances or circumstances the Veteran was exposed to. Such statement requires development, and raises the possibility of substantiating the claim. Under Shade, supra, such meets the threshold for reopening. REASONS FOR REMAND By this decision, the Board has reopened the previously denied claims for service connection for hypertension and diabetes. In addition, the Veteran claims service connection for OSA. For all three, further development is required. Sleep Apnea The Veteran testified in October 2020 that his spouse complained of his loud snoring during active military service. He reported, and his vocational rehabilitation application shows, he was married in 1961 which was during his active service. Service treatment records further document complaints of and treatment for inflamed tonsils, and sore and irritated throat, which were not in every instance associated with fever or infection. In addition, his discharge physical reflects complaints of ear, nose, and throat trouble, with medical findings of hypertrophied tonsils. The evidence of record indicates potential symptoms of sleep apnea in service, continuity of symptoms since that time, and a current diagnosis. While a January 2016 VA opinion addressed nexus, it did so solely in terms of whether hypertrophic tonsils played a causative role. A new opinion is required to address the expanded contentions of the Veteran and the complete evidence of record. Hypertension The Veteran alleges onset of hypertension in service; however, no documented readings meet the requirements for such, and the one which comes closest, 140/84, was actually found at a pre-induction examination. The Veteran also implies that OSA has caused or contributed to his current hypertension. As the possibility of service connection exists, based on the above, the appeals are intertwined. Additionally, a clear opinion regarding the potential nexus is warranted. Diabetes Similarly, the possibility of a relationship between diabetes, either causal or aggravating, has been raised, and so those matters are also intertwined. Moreover, at the October 2020 hearing, a theory of service connection based on “exposures” was raised and requires development. On remand, further details regarding such theory must be obtained from the Veteran, and a nexus opinion obtained. The matters are REMANDED for the following action: 1. Contact the Veteran and request additional evidence and information regarding his alleged “exposures” in service which caused the development of diabetes. If the Veteran responds, conduct appropriate inquiries to verify any such exposures. 2. Make all appropriate efforts to obtain any outstanding identified private treatment records. 3. Ensure that all outstanding VA treatment records are obtained. 4. Schedule the Veteran for a VA sleep apnea examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether currently diagnosed sleep apnea is at least as likely a snot caused or aggravated by service. The presence of hypertrophic tonsils in service, as well as competent and credible lay reports of snoring during and since service, must be discussed. A full and complete rationale for all opinions expressed is required. 5. Schedule the Veteran for VA hypertension examination; the claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is as likely as not that hypertension is caused or aggravated by service or a service-connected disability. Solely for purposes of opining, it should be presumed that sleep apnea is service-connected. Statements that hypertension was diagnosed shortly after service, as well as elevated blood pressures at pre-induction, should be discussed. A full and complete rationale for all opinions expressed is required. 6. Schedule the Veteran for a VA diabetes mellitus examination; the claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is as likely as not that diabetes is caused or aggravated by service or a service-connected disability. Solely for purposes of opining, it should be presumed that sleep apnea is service-connected. The examiner must inquire as to the Veteran’s exposure to any chemical or substance in service which he feels may have caused or aggravated diabetes. Such, as well as any substance identified by VA in connection with remand directive (1) must be discussed. A full and complete rationale for all opinions expressed is required. 2. Then, readjudicate the claims on appeal. If any matter remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board for further consideration, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.