Citation Nr: 21025946 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-21 465 DATE: April 29, 2021 ORDER The petition to reopen the claim for entitlement to service connection for deviated septum is reopened and to that limited extent, the appeal is granted. The petition to reopen the claim for entitlement to service connection for sleep apnea is reopened, and to that limited extent, the appeal is granted. REMANDED Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for deviated septum is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In an October 2002 rating decision, the RO denied entitlement to service connection for deviated septum with breathing problems. The Veteran did not perfect an appeal to the decision, and it became final. Evidence submitted since the 2002 rating decision is new and material to the issue of deviated septum. 2. In a June 2008 rating decision, the RO denied entitlement to service connection for sleep apnea. The Veteran did not perfect an appeal to that decision, and it became final. Evidence submitted since the 2008 rating decision is new and material to the issue of sleep apnea. CONCLUSIONS OF LAW 1. The October 2002 rating decision denying entitlement to service connection for deviated septum is final and evidence received since that rating decision is new and material and to that extent the criteria for reopening the claim have been met. 38 U.S.C. § 5108, 7105; 38 C.F.R. §§ 3.105, 3.156. 2. The June 2008 rating decision denying entitlement to service connection for sleep apnea is final and evidence received since that rating decision is new and material and to that extent the criteria for reopening the claim have been met. 38 U.S.C. § 5108, 7105; 38 C.F.R. §§ 3.105, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1979 to April 1987 and from August 1992 to December 1992. Petition to Reopen 1. Petition to reopen the claim for entitlement to service connection for deviated septum In an October 2002 rating decision, the agency of original jurisdiction (AOJ), denied service connection for deviated septum because the claimed condition was not shown to be related to active service. The Veteran filed a notice of disagreement within one year of notification of the decision but did not perfect the appeal after the issuance of the statement of the case in June 2003. Accordingly, the October 2002 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105. The Veteran submitted a new claim for entitlement to service connection for deviated septum in March 2011. In a January 2013 rating decision and the subsequent statement of the case in April 2015, the RO denied reopening the issue based on the submitted evidence not showing a current condition that is linked to service. The Veteran timely appealed with a Form VA 9. Regardless of the AOJ’s actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the AOJ is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the deviated septum issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. “New evidence” means existing evidence not previously submitted to the VA. 38 C.F.R. § 3.156(a). “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. Id. 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, and it must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and it views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Evidence “raises a reasonable possibility of substantiating the claim” if it would trigger the VA’s duty to provide an examination in adjudicating a non-final claim. See id. at 120-23. Evidence received since the October 2002 rating decision includes a 2007 private medical opinion linking deviated septum with injury in service, additional medical treatment records, and lay statements pertaining to the Veteran’s contentions regarding a nasal injury during active service. This evidence is new and material as it had not been previously considered in 2002 and relates to the reason for the claim was previously denied, i.e. a nexus with active service, which under adjudication of a non-final claim would trigger the duty to provide an examination. Accordingly, the claim for service connection for deviated septum is reopened. To this extent, the appeal is granted. The underlying claim is remanded. 2. Petition to reopen the claim for entitlement to service connection for sleep apnea In a June 2008 rating decision, the agency of original jurisdiction (AOJ), denied service connection for sleep apnea because it stated that the evidence did not show the diagnosis of sleep apnea. The record does not show that the Veteran filed a notice of disagreement within one year of notification of the decision. Accordingly, the June 2008 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105. The Veteran submitted a new claim for entitlement to service connection for sleep apnea in July 2011. In a January 2013 rating decision and the subsequent statement of the case in April 2015, the RO denied reopening the issue based on the submitted evidence not showing a current condition that is linked to service. The Veteran timely appealed with a Form VA 9. Evidence received since the June 2008 rating decision includes additional medical treatment records of sleep studies showing a diagnosis of sleep apnea and lay statements pertaining to the Veteran’s contentions regarding a nasal injury during active service. This evidence is new and material as it had not been previously considered in 2008 and relates to the reason for the claim was previously denied, i.e. evidence of a current diagnosis, which under adjudication of a non-final claim would trigger the duty to provide an examination. Accordingly, the claim for service connection for sleep apnea is reopened. To this extent, the appeal is granted. The underlying claim is remanded. REASONS FOR REMAND 1. Entitlement to service connection for coronary artery disease is remanded. This issue was previously before the Board and was remanded to obtain a medical opinion. The examiner opined on the specific information requested regarding the 1993 EKG reading. The examiner did not opine whether there was any direct connection with service. Additionally, there are lay statements in the evidence that indicate doctors have connected sleep apnea with the development of coronary artery disease and that issue is being remanded for an additional medical opinion, accordingly an addendum opinion on direct and secondary service connection is required. 2. Entitlement to service connection for deviated septum is remanded. The Veteran submitted a medical opinion dated 2007 from a private doctor opining that the Veteran’s claimed nasal injury during service contributed to the development of deviated septum. This is new since the prior 2002 denial for deviated septum. The AOJ should order a VA examination to determine if the Veteran has a deviated septum and if so, whether such it relates to service or to a service-connected disability prior to issuing a new supplemental statement of the case or rating decision. A 2002 VA examination noted a slight deviation by the doctor but not by X-ray. 3. Entitlement to service connection for sleep apnea is remanded. The AOJ had previously obtained a VA opinion in August 2020 wherein the examiner stated that there was no diagnosis for sleep apnea. There are documented sleep studies from 2004 to 2005 showing a diagnosis of sleep apnea with the use of CPAP machine and a private medical opinion dated 2007 opining that the Veteran’s sleep apnea developed in service as related to a nasal injury. The AOJ should order a new medical examination with opinion, ensuring that the medical examiner has access to all of the records in the Veteran’s claims file. The matters are REMANDED for the following action: 1. Determine if it is possible to obtain the medical records from the 1981 nasal injury that the Veteran contends occurred in Groton, Connecticut. If possible, obtain these records. If not possible, write a memorandum explaining the attempts to obtain them. 2. After attempting to obtain the records from Connecticut, order a VA examination for deviated septum. Ensure that the medical provider has access to the entire claims file and acknowledges such access in the examination report. (a.) The examiner should determine if the Veteran has a diagnosis of deviated septum. (b.) If a diagnosis of deviated septum exists, the examiner should opine if it is at least as likely as not directly related to an injury, event, or disease incurred during active service. (c.) The examiner should reference the Veteran’s contention that he was injured in his nose during active service in Connecticut in 1981 and the other lay statements from his family describing the injury. The examiner should reference the 2007 private medical opinion linking deviated septum to this injury. 3. After attempting to obtain the records from Connecticut, order a VA examination for sleep apnea. Ensure the medical provider has access to the entire claims file and acknowledges such access in the examination report. (a.) The examiner should determine if the Veteran has a diagnosis of sleep apnea. The examiner should reference the medical records from 2004-2005 containing reports of sleep studies and CPAP usage. (b.) If a diagnosis of sleep apnea exists, the examiner should opine if it is at least as likely as not related to an injury, event, or disease incurred during active service. The examiner should reference the Veteran’s statements and other lay statements that he was injured in the nose in 1981 in Connecticut, resulting in damage to the nasal cavity and subsequently developed sleep apnea. The examiner should reference the 2007 private medical opinion linking sleep apnea to this injury. 4. Order a new VA medical addendum opinion for coronary artery disease. The Veteran contends that the medical records show that his CAD is related to sleep apnea. (a.) The examiner should opine whether the Veteran’s CAD is a result of injury, event, or disease incurred in active service. (b.) The examiner should opine if the Veteran’s CAD is at least as likely as not secondary to or aggravated by sleep apnea, deviated septum, or at least as likely as not secondary to or aggravated by any service-connected disability. The examiner   should reference any medical records suggesting a connection between sleep apnea and CAD. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Miller, 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.