Citation Nr: 21012206 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-39 845 DATE: March 3, 2021 ORDER New and material evidence having been submitted, the previously denied and final claim of service connection of sleep apnea syndrome is reopened. REMANDED Entitlement to service connection of sleep apnea syndrome is remanded. FINDING OF FACT New and material evidence has been submitted to reopen the previously denied and final claim of service connection of sleep apnea syndrome. CONCLUSION OF LAW New and material evidence having been received; the claim of service connection of sleep apnea syndrome is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1994 to June 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May and July 2010 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his VA Form 9 (Appeal to the Board of Veteran’s Appeals), the Veteran requested a hearing before a Veterans Law Judge. In October 2020, the Veteran’s representative submitted a written request to withdraw that hearing request. 1. Whether new and material evidence has been submitted to reopen the previously denied and final claim of service connection of sleep apnea syndrome If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In general terms, “new” evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. “Material” evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156 (a). New and material evidence need not prove a claim, but merely address a previously deficient criteria of service connection. The Veteran was initially denied service connection of sleep apnea in a 2007 rating decision. He did not appeal that denial and it became final. In 2010, he filed a claim to reopen that previously denied claim. Although it appears as though the July 2010 rating decision de facto reopened the claim, the Board must still consider whether new and material evidence has been submitted to reopen the claim prior to adjudication. In support of his claim to reopen, the Veteran has submitted lay statements from multiple parties who knew him during active service, and who have attested to witnessing sleep apnea symptoms in the Veteran during his final years of active service. This evidence is new in that it was not of record at the time of the 2007 denial. It is material in that it addresses a previously deficient criteria of service connection, namely, the presence of in-service symptoms. As such, the Board finds that the claim should be reopened. To this limited extent, the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection of sleep apnea syndrome is remanded. The Board recognizes that this appeal has been pending for over 10 years, and greatly regrets the length of time it took for the appeal to come up for review by the Board. The Board further regrets any additional delay in the final adjudication of this appeal, however, a remand is necessary to ensure proper development of this claim. The Veteran has a present diagnosis of sleep apnea. He has also submitted multiple statements from himself, and several parties who knew him during service, attesting to observable symptoms of sleep apnea. Although there is no confirmed diagnosis of sleep apnea in service, there is at least adequate indication that his sleep apnea may have manifested during that period, to warrant an examination. As such, the appeal is remanded so that the Veteran may be afforded a VA examination to assess the progression and etiology of his present sleep apnea. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Schedule the Veteran for a VA examination of his sleep apnea. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s present sleep apnea at least as likely as not related to service, including the symptoms reported in the various lay statements of record. The examiner is also requested to opine as to the date of onset of the present sleep apnea, and whether it manifested to a compensable degree in service, or within one year of separation from service. In providing the requested opinion, consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel