Citation Nr: 21014541 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 20-02 124 DATE: March 12, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for sleep apnea is reopened. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded. FINDING OF FACT 1. A July 2015 rating decision by the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for sleep apnea based on findings that the evidence did not show an event, disease, or injury in service and that there was no link between the Veteran’s sleep apnea and his military service. The Veteran did not appeal this decision or submit new evidence within one year of the denial. 2. The evidence added to the record regarding the claim for entitlement to service connection for sleep apnea since the July 2015 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim. CONCLUSION OF LAW 1. The July 2015 rating decision that denied entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7104(b); 38 C.F.R. §§ 20.1100(a), 20.1104. 2. New and material evidence has been received to reopen the previously denied 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 FINDING AND CONCLUSION The Veteran served honorably on active duty from July 1961 to July 1965, with additional periods of service in the United States Navy Reserve. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a virtual hearing on October 28, 2020. A transcript of this hearing has been associated with the record. As a preliminary matter, the record reflects that the Veteran filed a timely notice of disagreement (NOD) in July 2018 for his claim of entitlement to service connection for tinnitus. The Agency of Original Jurisdiction (AOJ) issued a statement of the case (SOC) in November 2019 that did not address the Veteran’s claim for service connection for tinnitus. However, the record reflects that the AOJ continued to develop the Veteran’s claim for entitlement to service connection for tinnitus, for example by obtaining a VA examination for the claim. This suggests acknowledgement of the Veteran’s NOD by the AOJ. Further, the AOJ granted the Veteran’s claim of service connection for tinnitus in a November 2019 rating decision. At the October 2020 Board hearing, the Veteran’s representative argued that the Veteran now disagrees with the assigned disability rating for his service-connected tinnitus, and that this claim should be remanded to the AOJ for issuance of an SOC in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). Regarding the issue of entitlement to a higher initial rating for the Veteran’s service-connected tinnitus, it is well-established that the initial rating is a down-stream issue which must be separately appealed after a grant of service connection. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Effective March 24, 2015, regulations provide that a NOD must be submitted via a specific form provided by VA. 38 C.F.R. § 20.201(a)(1). VA created the VA Form 21-0958, Notice of Disagreement, for that purpose. The Veteran did not submit a NOD addressing the November 2019 rating decision that established the initial disability rating for tinnitus. Therefore, there is no pending NOD and the Manlincon case does not apply. The Board has no jurisdiction to address the claim. To the extent that the Veteran seeks a higher rating for his tinnitus disability, he is invited to file a new claim. New and Material Evidence 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for sleep apnea is reopened. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, under the legacy system of claims which applies to this case, a claim which has been denied in an unappealed 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 decisionmakers. 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). 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273 (1996); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim). The Veteran submitted an initial claim for service connection for sleep apnea in April 2015. In connection with his claim, the AOJ obtained the Veteran’s service treatment records (STRs) and VA treatment records. The claim was denied in a July 2015 rating decision, and the Veteran did not appeal this decision. The Veteran filed a subsequent petition to re-open his claim for entitlement to service connection for sleep apnea in December 2016, along with the evidence discussed below. The AOJ issued a rating decision in April 2017, and again in September 2017, finding that the Veteran’s claim was not reopened as the evidence the Veteran submitted was not new and material. The Veteran then filed a NOD in July 2018 and appealed these matters to the Board. The Board finds that the evidence received since the July 2015 rating decision is in fact new and material evidence, to include private treatment records, lay statements from fellow servicemembers, and lay statements from the Veteran. This evidence satisfies the low threshold requirement for new and material evidence and the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The underlying merits of this issue will be discussed below. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran claims entitlement to service connection for his obstructive sleep apnea. He contends that he first began experiencing trouble sleeping and other symptoms while serving on active duty. The Veteran also contends that his duty assignments during active duty resulted in very little sleep, which then contributed to his development of sleep apnea. See October 2020 Board Hearing transcript. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the Veteran's service or another service-connected disability, but there is (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). These elements are satisfied regarding the present claim for entitlement to service connection for obstructive sleep apnea. There is competent evidence of record that the Veteran has a diagnosis of obstructive sleep apnea. See e.g., January 2013 private polysomnography report. There is evidence that the Veteran exhibited symptoms of sleep apnea during service in the form of difficulty falling and staying asleep, waking several times per night, and snoring. See e.g., January 2017 Correspondence; October 2020 Board Hearing transcript. Furthermore, the Veteran's post-service treatment records include VA and private treatment records showing that the Veteran reported symptoms of sleep apnea. See e.g., January 2017 private treatment records. Regarding the third and fourth elements, there is an indication that the obstructive sleep apnea could be related to service, but there is insufficient evidence of record by which the Board can decide. As the four McLendon elements are satisfied, the Board finds that a VA medical opinion should be obtained to determine the nature and etiology of his diagnosed sleep apnea. 2. Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded. The Veteran was last afforded a VA audiological examination in September 2017. However, during the October 2020 Board hearing, the Veteran testified that his bilateral hearing loss has increased in severity since the September 2017 VA examination. Therefore, this claim must be remanded, and the Veteran should be afforded a new VA examination to determine the current severity of his service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matters are REMANDED for the following action: 1. Obtain an opinion that addresses the etiology of his current sleep apnea disability. Upon review of the file, the examiner should address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea had its onset during military service or is otherwise related to military service. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists. Attention is invited to VBMS, January 9, 2017, document labeled Correspondence, speaking to irregular sleep and loud snoring; October 28, 2020 Board Hearing transcript, pages 7-10, describing in-service circumstances of very little sleep. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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 it is to find against it. 2. Schedule the Veteran for a VA audiological examination for evaluation of the current severity of the Veteran's service-connected bilateral hearing loss. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, Associate 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.