Citation Nr: 21012807 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-19 734 DATE: March 5, 2021 ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for status post bunionectomy (a left great toe disorder) is remanded. FINDINGS OF FACT 1. The RO previously denied the Veteran’s claim of entitlement to service connection for sleep apnea in a March 2009 rating decision. The Veteran was notified of the decision, but he did not appeal, and that claim is final. 2. Evidence obtained since the March 2009 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for sleep apnea. CONCLUSIONS OF LAW 1. The March 2009 rating decision which denied entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received in order to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1985 to July 1994. In December 2020, the Veteran testified before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the claims file. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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 Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the Regional Office (RO) previously considered and denied the Veteran’s claim for service connection for sleep apnea in a December 2008 rating decision, which included a July 2006 private sleep study diagnosing sleep apnea. See July 2006 Private Treatment Record. In January 2009, the Veteran submitted the July 2006 private sleep study again, and the RO issued another rating decision in March 2009. The Veteran did not file a notice of disagreement with this determination. Further, while additional evidence showing treatment for his sleep apnea was submitted by the Veteran in October 2009, the evidence was not material as it did not include an etiological opinion or any indication of a nexus to service. Therefore, the provisions of 38 C.F.R. § 3.156(b) do not apply. As no further action was pursued, the March 2009 decision is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). At the time of the prior March 2009 determination, the evidence included the Veteran’s service treatment records (STRs) that failed to show any in-service diagnoses or treatment. Further, the RO found that while the July 2006 private treatment records included a diagnosis, there was no evidence of a nexus to service. The Veteran filed a petition to reopen this claim in October 2009. Since the March 2009 denial, in relevant part, the Veteran submitted a statement in May 2010 from his wife, who is a registered nurse, attesting a long history of sleeping problems and snoring since his military service. See May 2010 Statement. Therefore, based on the submission of this evidence that shows a possible nexus to service, reopening of the claim for service connection for sleep apnea is accordingly warranted. To this extent only, the appeal is granted. REASONS FOR REMAND 1. Sleep Apnea The Veteran seeks service connection for sleep apnea that he believes is due to his military service. The Veteran’s private treatment records show that he has a diagnosis of sleep apnea. See December 2019 VA Treatment Record. Further, the Veteran’s wife, EM, is a registered nurse and submitted a statement in May 2010 attesting to a long history of sleep problems and snoring since at least his military service. Based upon this evidence, and examination based on McLendon v. Nicholson is warranted. See 20 Vet. App. 79, 81 (2006). Given that this case satisfies the criteria for an examination as determined in McLendon, a remand is required for a VA examination to determine whether the Veteran’s diagnosed sleep apnea may be attributed to his military service. 20 Vet. App. at 81. 2. Left great toe disorder The Veteran seeks service connection for a left toe disorder, to include residual pain and a painful scar, that he believes is due to his military service. Specifically, the Veteran testified that due to the boots he wore in service and physical activity, he began suffering from a left great toe disorder that eventually resulted in a bunionectomy. The Veteran’s VA treatment records show that the Veteran has bunions and previously underwent a bunionectomy on his left great toe. See November 2012 and May 2015 VA Treatment Records. Further, the Veteran’s service treatment records show complaints and treatment for frostbite on his left great toe in January 1981, and an injury during physical training to the left great toe in May 1992. During his December 2020 Board hearing, the Veteran testified that he underwent the surgery on his left great toe in 1992 while stationed at Fort Hood, prior to service separation. However, the Veteran’s April 1994 separation examination is silent regarding any in-service surgery on the left great toe. Given that this case satisfies the criteria for an examination as determined in McLendon, a remand is required for a VA examination to determine whether the Veteran’s currently identified bunions and reports of a painful scar may be attributed to his military service. 20 Vet. App. at 81(2006). Additionally, the RO should ensure all service treatment records have been obtained. The matters are REMANDED for the following action: 1. If not already associated with the record, obtain and associate with the claims file any additional VA or private treatment records pertaining to the Veteran’s remaining claims on appeal. 2. Thereafter, request the service department, the National Personnel Records Center, or any other appropriate organization having access to the Veteran’s STRs, records regarding in-service surgical procedures on the left great toe. Note that the Veteran stated the surgery occurred while he was stationed at Fort Hood. Any records obtained should be associated with the claims file. If no such records are available, this should be indicated in the claims file. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the diagnosed sleep apnea. A complete rationale for all opinions offered must be provided. The examiner is asked to determine: (a) whether the sleep apnea disorder is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service. The examiner must specifically comment on: (a) the statement submitted by E.M., who has been identified as a registered nurse (RN), and noted the Veteran has suffered from sleep problems since at least his military service. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 4. Schedule the Veteran for a VA examination regarding his claimed left great toe disorder. The examiner is asked to respond to the following: (a) Identify any and all residuals of a left great toe disorder, to include bunions and a painful scar. (b) whether it is at least as likely as not (50-percent probability or greater) that any identified residual was incurred in service, or is otherwise related to service. The examiner must specifically comment on: (a) the January 1981 and May 1992 in-service treatment for the left great toe. 5. The Agency of Original Jurisdiction (AOJ) must review the claims and ensure that the foregoing development and requested actions have been completed in full. If any development is incomplete, then appropriate and corrective actions must be implemented. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.