Citation Nr: 21022395 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-45 043 DATE: April 15, 2021 ORDER The application to reopen the claim for service connection for obstructive sleep apnea (OSA) based on new and material evidence is granted. REMANDED Entitlement to service connection for OSA, to include as secondary to a service-connected disability, is remanded. FINDING OF FACT Entitlement to service connection for OSA was denied in an unappealed November 2008 rating decision; evidence that was not before agency decision makers at the time of that decision and that raises the reasonable possibility of substantiating the claim has subsequently been received. CONCLUSION OF LAW The criteria for the application to reopen the previously denied claim for service connection for OSA based on new and material evidence have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had periods of active service from July 1979 to April 1992, from December 1995 to August 1996, and from February 1998 to March 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision. The Veteran initially requested a hearing before the Board when he filed his substantive appeal in December 2015 but later withdrew that request in October 2019 correspondence. Application to reopen previously denied claim for service connection for OSA In November 2008, VA denied entitlement to service connection for OSA. The Veteran did not appeal the decision by submitting a notice of disagreement within one year, nor did he submit new and material evidence within one year of that decision. Consequently, the November 2008 rating decision was final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Generally, a claim which has been denied in an unappealed Board decision or an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 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 evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with the 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 United States Court of Appeals for Veterans Claims (Veterans Court) has held that the determination of whether newly received 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 Veterans Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the evidence already in the record, 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). Here, in a December 2015 statement associated with his substantive appeal, the Veteran has submitted a new theory—that his OSA condition may be secondary to his sinusitis and sarcoidosis conditions that were diagnosed during service and for which he is currently service-connected. The Board finds that this additional theory which was not suggested or developed in preparation for the November 2008 decision is sufficient to reopen the claim for service connection, and, to this extent only, the claim is granted. REASONS FOR REMAND Service connection for OSA, on a direct and secondary basis The Board cannot make a fully-informed decision on the issue of entitlement to service connection for OSA because no VA examiner has opined whether this condition had its onset during service or was caused or aggravated by the Veteran’s service connected sinusitis or sarcoidosis conditions. Accordingly, this matter is REMANDED for the following actions: Schedule the Veteran for a VA examination for his OSA. The examiner must review the claims file. The examiner is asked to provide a response to the following questions: (a.) Is the Veteran’s OSA at least as likely as not related to service, including the Veteran’s and other lay persons’ contentions regarding his snoring during service? (b.) Is the Veteran’s OSA at least as likely as not proximately due to either his service-connected sinusitis or his service-connected sarcoidosis? (c.) Is the Veteran’s OSA at least as likely as not aggravated (i.e., worsened beyond its natural progression) by either his service-connected sinusitis or his service-connected sarcoidosis? Provide a rationale to support these opinions. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.