Citation Nr: 21012806 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 20-04 117 DATE: March 5, 2021 ORDER Reopening of the claim for service connection for sleep apnea is granted; the appeal is granted to this extent only. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes mellitus, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to type II diabetes mellitus, is remanded. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder is remanded. FINDINGS OF FACT 1. A January 2011 rating decision denied service connection for sleep apnea. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. The evidence associated with the claims file subsequent to the January 2011 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for sleep apnea. CONCLUSIONS OF LAW 1. The January 2011 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for sleep apnea has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to October 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran filed a claim for an increased rating for PTSD and depressive disorder (hereinafter “PTSD”), to reopen service connection for sleep apnea, and for service connection for erectile dysfunction in November 2018. In a December 2018 rating decision, the RO denied entitlement to an increased rating for PTSD, granted reopening of the claim for service connection for sleep apnea, and denied service connection for sleep apnea and erectile dysfunction. The Veteran filed a notice of disagreement with these denials in January 2019, a statement of the case was issued in November 2019, and the Veteran perfected an appeal in January 2019. The Board notes that the Veteran has three other separate appeals pending. The first involves a claim for service connection for hypertension. This appeal was denied by the Board in a March 2019 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a December 2020 memorandum decision the Court vacated and remanded the Board’s denial of service connection for hypertension. However, to date the Veteran and his representative have not yet been notified that the vacated appeal has been returned to and docketed at the Board, nor that he has a period of 90-days to submit additional evidence or argument following the return of the appeal to the Board. See Clark v. O’Rourke, 30 Vet. App. 92, 97–99 (2018). As the Veteran has not yet been afforded full notice and due process with respect to the hypertension appeal, the Board declines to take jurisdiction of that issue at this time. Instead, it will be the subject of a Board decision issued at a later date. The second appeal involves claims for an increased rating for bilateral hearing loss and service connection for bilateral cataracts and bilateral lower extremity peripheral neuropathy. This appeal was the subject of a December 2020 Board decision and remand, in which the Board denied an increased rating for bilateral hearing loss and remanded the claims for service connection for bilateral cataracts and bilateral lower extremity peripheral neuropathy for further development. Service connection for bilateral cataracts was granted in a February 2021 rating decision, and therefore that issue is no longer part of that appeal. Ab v. Brown, 6 Vet. App. 35 (1993). While a supplemental statement of the case has been issued on the remaining issues of entitlement to service connection for left and right lower extremity diabetic neuropathy, the appeal has not been certified by the RO to the Board nor have the Veteran and his representative been notified that the appeal has been returned to and docketed at the Board. 38 C.F.R. § 3.103; see Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015). As the required notifications have not been sent in regard to that appeal, the Board declines to take any further action on the issues of service connection for left and right lower extremity diabetic neuropathy at this time. Instead, these issues will the subject of a separate Board decision issued at a later date. Finally, the Veteran was denied entitlement to a total disability rating based on individual unemployability (TDIU) in a January 2020 rating decision. 38 C.F.R. §§ 3.2400(a)(1), 19.2(d). The Veteran appealed the denial to the Board and requested to submit evidence. 38 C.F.R. §§ 3.2500(a)(1)(ii), 20.202, 20.203. As this appeal is being processed under the modernized review system created by the Appeals Modernization Act (AMA), the Board cannot take jurisdiction over the issue of entitlement to a TDIU at this time. Instead, it will be the subject of a later Board decision issued in conformity with the AMA. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms “new” and “material” for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). “Relevant” means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 1341–43 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18. 1. Reopening service connection for sleep apnea. The RO last denied service connection for sleep apnea in January 2011. The Veteran was notified of the decision but did not file a notice of disagreement, nor were new and relevant service department records associated with the file subsequent to the decision. 38 C.F.R. §§ 3,156(c), 20.201, 20.302. No evidence indicating that the sleep apnea was due to service or secondary to another service-connected disability was associated with the file during the appellate period. 38 C.F.R. § 3.156(b); see Lang v. Wilkie, 971 F.3d 1348, 1353–55 (Fed. Cir. 2020). As such, the January 2011 rating decision is final. 38 C.F.R. § 20.1103. The evidence of record in January 2011 consisted of the Veteran’s lay statements, VA treatment records, and VA examination reports. The evidence failed to establish that the Veteran’s sleep apnea was either causally related to his active service or was caused or aggravated by a service-connected disability. Evidence received since the rating decision includes additional VA examination reports, treatment records, and further lay statements from the Veteran. Of particular note, as part of his November 2018 claim to reopen the Veteran asserted that his sleep issues began in service and had continued since. The Veteran is competent to report the onset and persistence of such lay observable symptoms, and the statements are presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished facts of a nexus between sleep apnea and service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for sleep apnea is warranted. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction. VA obtained an opinion concerning the Veteran’s erectile dysfunction in December 2018. The examiner stated that it was less likely than not that the erectile dysfunction was caused by the Veteran’s diabetes mellitus as the two disabilities were wholly separate and unrelated. The examiner further stated that medical literature did not support a relationship between the disabilities. However, the examiner did not specifically address the issue of aggravation of the erectile dysfunction by the diabetes. Both causation and aggravation must be discussed for an opinion on secondary service connection to be adequate. El-Amin v. Shinseki, 26 Vet. App. 136, 140–41 (2013); see also Allen v. Brown, 7 Vet. App. 439 (1995). As such, a remand is necessary for an addendum opinion concerning secondary service connection. 2. Entitlement to service connection for sleep apnea. VA obtained an opinion concerning the etiology of the Veteran’s sleep apnea in December 2018. The examiner stated that it was less likely than not that the sleep apnea was due to service, stating that the Veteran’s sleep issues in service were acute and that there was no evidence of chronicity. However, the examiner did not address the Veteran’s assertions that his sleep issues have persisted since service. Dalton v. Peake, 21 Vet. App. 23 (2007). Further, the Veteran has also alleged that his sleep apnea is secondary to his service-connected diabetes mellitus. However, the December 2018 examiner did not provide an opinion as to whether sleep apnea was caused or aggravated by the diabetes. See Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). Based on the foregoing, a remand is warranted to obtain addendum opinions concerning direct and secondary service connection. 3. Entitlement to an increased rating PTSD. Since the March 2020 statement of the case, numerous VA treatment records have been associated with the claims file, which detail on-going treatment for the Veteran’s PTSD and the symptoms associated with it. As such, they contain information pertinent to the issue of entitlement to an increased rating for PTSD currently on appeal and were not previously considered by the AOJ. 38 C.F.R. § 20.1305(c). As the evidence was not submitted by the Veteran, a waiver of review of this evidence by the AOJ cannot be presumed. 38 U.S.C. § 7105(e) (2012). In December 2020 correspondence, the Veteran was asked whether he wanted to waive AOJ review of this evidence. The Veteran was further informed that if a response was not received within 45 days, it would be assumed that he wished his claim to be remanded so that the AOJ could consider the evidence in the first instance. To date, VA has not received a response to the December 2020 letter. As such, the issue must be remanded for the issuance of a supplemental statement of the case. 38 U.S.C. § 7104(a); 38 C.F.R. § 19.31. The matters are REMANDED for the following action: 1. Obtain an addendum opinion concerning the etiology of the Veteran’s erectile dysfunction. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the erectile dysfunction was caused by the service-connected diabetes mellitus? b) If not, is it at least as likely as not (a fifty percent probability or greater) that the erectile dysfunction was aggravated (worsened) by the diabetes mellitus? A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Obtain an addendum opinion concerning the etiology of the Veteran’s sleep apnea. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the sleep apnea was caused by the service-connected diabetes mellitus? b) If not, is it at least as likely as not (a fifty percent probability or greater) that the sleep apnea was aggravated (worsened) by the diabetes mellitus? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the sleep apnea is otherwise causally related to the Veteran’s active service? A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Issue a supplemental statement of the case re-adjudicating the issues on appeal which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. If the determination remains unfavorable to the Veteran, the appeal should then be returned to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.