Citation Nr: 21007100 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-43 805 DATE: February 8, 2021 ORDER New and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. New and material evidence has been submitted to reopen a claim for service connection for sleep apnea. New and material evidence has been submitted to reopen a claim for service connection for hypertension. New and material evidence has been submitted to reopen a claim for service connection for a left arm disability. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a left arm disability is remanded. FINDINGS OF FACT 1. A final February 2008 rating decision denied service connection for an acquired psychiatric disorder on the basis that the evidence of record failed to show that the condition was incurred in or caused by service, or that it was clinically diagnosed. 2. Evidence received since the February 2008 rating decision includes the Veteran’s competent testimony regarding his mental health symptoms and a private medical opinion containing mental health diagnoses; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 3. A final February 2008 rating decision denied service connection for sleep apnea on the basis that the evidence of record failed to show that sleep apnea was clinically diagnosed. 4. Evidence received since the February 2008 rating decision includes VA treatment records containing a diagnosis of obstructive sleep apnea; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 5. A final February 2008 rating decision denied service connection for hypertension on the basis that the evidence of record failed to show a diagnosis or treatment for hypertension within one year of discharge from service. 6. Evidence received since the February 2008 rating decision includes the Veteran’s lay testimony contending hypertension is secondary to sleep apnea, which he attributes to his acquired psychiatric disability; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 7. A final February 2008 rating decision denied service connection for a left arm disability on the basis that the evidence of record failed to show a diagnosed disability. 8. Evidence received since the February 2008 rating decision includes the Veteran’s lay testimony contending a left arm disability is secondary to diabetes mellitus, which he attributes to his sleep apnea; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim for service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.1103. 2. New and material evidence has been received and the claim for service connection for sleep apnea may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.1103. 3. New and material evidence has been received and the claim for service connection for hypertension may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.1103. 4. New and material evidence has been received and the claim for service connection for a left arm disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1971 to May 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran and his spouse testified at a videoconference hearing before the undersigned. The Board has re-characterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, to make clear that the issue before the Board is entitlement to a psychiatric disability, regardless of the particular diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.200 20.1100, 20.1103, 20.1104. However, a final decision shall be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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 standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder The Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, claimed as a sleep disorder with nightmares, was first denied in February 2008 on the basis that the evidence of record failed to show that the condition was incurred in or caused by service, or that it was clinically diagnosed. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. Since the February 2008 decision, the Veteran has provided competent testimony regarding his mental health, and he has submitted a private medical opinion with mental health diagnoses. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for an acquired psychiatric disorder is reopened. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for sleep apnea The Veteran’s claim of entitlement to service connection for sleep apnea was first denied in February 2008 on the basis that the evidence of record failed to show that sleep apnea was clinically diagnosed. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. Since the February 2008 decision, VA treatment records have been associated with the record that indicate the Veteran has a diagnosis of obstructive sleep apnea. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for sleep apnea is reopened. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension The Veteran’s claim of entitlement to service connection for hypertension was first denied in February 2008 on the basis that the evidence of record failed to show a diagnosis or treatment for hypertension within one year of discharge from service. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. Since the February 2008 decision, the Veteran has testified that his hypertension is secondary to sleep apnea, which he attributes to his acquired psychiatric disability. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for hypertension is reopened. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for a left arm disability The Veteran’s claim of entitlement to service connection for a left arm disability, claimed as left arm pain, was first denied in February 2008 on the basis that the evidence of record failed to show a diagnosed disability. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. Since the February 2008 decision, the Veteran has testified that his left arm disability is related to his diabetes mellitus, which he attributes to his sleep apnea. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for a left arm disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder is remanded. The Veteran has testified to several in-service stressors, including the nature of his work as a medic treating servicemen returning from Vietnam, and an incident in Korea where he performed a tracheotomy on a local man injured in a bicycle accident. A remand is required to allow VA to attempt to corroborate the Veteran’s reported stressors. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends he has sleep apnea secondary to his acquired psychiatric disorder. Because a decision on the remanded issue of service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of service connection for sleep apnea, the issues are inextricably intertwined. A remand of the claim for service connection for sleep apnea is required. 3. Entitlement to service connection for hypertension is remanded. The Veteran contends he has hypertension secondary to his obstructive sleep apnea. Because a decision on the remanded issues of service connection for an acquired psychiatric disorder and sleep apnea could significantly impact a decision on the issue of service connection for hypertension, the issues are inextricably intertwined. A remand of the claim for service connection for hypertension is required. 4. Entitlement to service connection for diabetes mellitus type II is remanded. The Veteran contends he has diabetes mellitus type II secondary to his obstructive sleep apnea. Because a decision on the remanded issues of service connection for an acquired psychiatric disorder and sleep apnea could significantly impact a decision on the issue of service connection for diabetes mellitus, the issues are inextricably intertwined. A remand of the claim for service connection for diabetes mellitus is required. 5. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends he has erectile dysfunction secondary to his acquired psychiatric disorder, obstructive sleep apnea, or diabetes mellitus. Because a decision on the remanded issues of service connection for an acquired psychiatric disorder, sleep apnea, and diabetes mellitus could significantly impact a decision on the issue of service connection for erectile dysfunction, the issues are inextricably intertwined. A remand of the claim for service connection for erectile dysfunction is required. 6. Entitlement to service connection for a left arm disability is remanded. The Veteran contends he has a left arm disability secondary to his diabetes mellitus. Because a decision on the remanded issue of service connection for diabetes mellitus could significantly impact a decision on the issue of service connection for a left arm disability, the issues are inextricably intertwined. A remand of the claim for service connection for a left arm disability is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2015 to the present. 2. Attempt to corroborate the Veteran’s in-service stressors, including his work as a medic treating servicemen returning from Vietnam and an incident in Korea where he performed a tracheotomy on a local man injured in a bicycle accident. If more details are needed, contact the Veteran to request the information. 3. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorders, to include posttraumatic stress disorder (PTSD) and major depressive disorder. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include his testimony related to his work as a medic treating servicemen returning from Vietnam. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and   provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dean, 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.