Citation Nr: 21026550 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 20-09 641 DATE: May 3, 2021 ORDER Entitlement to an earlier effective date of April 7, 2015, but no earlier, for the grant of service connection for diabetes mellitus, is granted. Entitlement to service connection for sleep apnea is granted. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, hypothyroidism, and/or sleep apnea. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, hypothyroidism, and/or sleep apnea, is remanded. FINDINGS OF FACT 1. In a July 2015 rating decision, the RO denied service connection for diabetes mellitus based on a lack of verification of service in an area deemed presumptive for herbicide exposure. 2. In a July 2017 rating decision, the RO reopened the Veteran's claim of service connection for diabetes mellitus and granted the claim solely based on receipt of additional service department records that verified service in an area deemed presumptive for herbicide exposure. 3. The earliest effective date possible for the grant of service connection for diabetes mellitus is April 7, 2015, the date of his initial claim. 4. Resolving all reasonable doubt in favor of the Veteran, the Veteran's sleep apnea was incurred in service, or is etiologically related to his active duty service. 5. The evidence received since the July 2015 rating decision is not cumulative or redundant and does raise a reasonable possibility of substantiating the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date of April 7, 2015, but no earlier, for the grant of service connection for diabetes mellitus have been met. 38 U.S.C. §§ 5108, 5110, 7103, 7104; 38 C.F.R. §§ 3.156, 3.400. 2. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, hypothyroidism, and/or sleep apnea. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Navy from September 1965 to September 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an earlier effective date of April 7, 2015, but no earlier, for the grant of service connection for diabetes mellitus. The Veteran contends that an earlier effective date prior to July 21, 2016 is warranted for the grant of service connection for his diabetes mellitus, pursuant to 38 C.F.R. § 3.156(c). The Board denied service connection for the Veteran's diabetes mellitus in a July 2015 rating decision based on the inability to verify that the Veteran served in an area that is considered presumptive for herbicide exposure. The Veteran did not appeal this decision, and thus, it became final. 38 U.S.C. § 7103(a). In July 2016, the Veteran submitted an intent to file, and within that year, sought to reopen this claim for diabetes mellitus on April 2017. Subsequently, in a July 2017 rating decision, the VA reopened and granted the claim, assigning an effective date of July 21, 2016 (date VA received intent to file for the reopening of the claim). Under the law, generally the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). However, upon receipt of an intent to file, if a formal claim by way of application form is received within one year after the date of intent to file, the effective date will be considered the date of receipt of the intent to file. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999). As such, in general, the RO assigned the earliest possible effective date for its grant of the reopened claim, which as noted above was received by VA on July 21, 2016. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Here, however, in April 2017, additional military personnel files were uploaded to the Veteran's claims file; and upon review, they specifically report and corroborate the Veteran's contention of having served in Brown Waters of Vietnam during the applicable period. See Military Personnel Record, April 2017. The Board acknowledges that these additional records, which existed at the time of the original rating decision, were not considered at that time, and formed a sole basis for which the grant of service connection in the July 2017 rating decision. Therefore, the Board finds that an earlier effective date prior to July 21, 2016, is warranted. In contrast to the general rules governing effective dates for a grant of service connection noted above, 38 C.F.R. § 3.156(c) requires the VA to reconsider a veteran's claim when relevant service department records are newly associated with the veteran's claims file, whether or not they are "new and material" under § 3.3156(a). 38 C.F.R. § 3.156(c)(1) (noting that § 3.156(c) applies "notwithstanding paragraph (a)"). In other words, § 3.156(c) seeks to place a veteran in the position he would have been had the VA been able to consider the relevant service department record at the time of initial adjudication of the claim. Additionally, 38 C.F.R. § 3.156(c) requires retrospective disability rating inquiry when (1) the VA rendered a decision denying a claim before receiving certain service department records, and (2) benefits are later granted based on those records, in whole or in-part. Essentially, the Board must determine whether the additional service department records were relevant, such that the initial agency decision should have been reconsidered. Recently, in a detailed analysis, the United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed the application of 38 C.F.R. § 3.156(c)(1) and held that the term "relevant" has only one reasonable meaning, which the Federal Circuit explained, "in order to be "relevant," a record must speak to a matter in issue, in other words, a matter in dispute." Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020). Based on the Federal Circuit's decision in Kisor, VA was required to reconsider the Veteran's claim pursuant to 38 C.F.R. § 3.156(c) because the claim had been previously denied for a lack of verification that the Veteran served in an area that is considered presumptive for herbicide exposure; to which, the additional service department records specifically pertained to the verification of service. Therefore, due to the additional records directly involving the reason for the previous denial, they are considered "relevant", and thus 38 C.F.R. § 3.156(c) was applicable. The Board finds that the findings in Kiosr are directly applicable herein, for the Veteran's claim. The Board finds an earlier effective date is warranted in this case because the additional relevant service department records were associated with the claims file after the Veteran's claim was denied in July 2015. As the claim is now being reconsidered, not reopened, the effective date would be affixed by operation of 38 C.F.R. § 3.400(q)(2) for entitlement to service connection arising on a presumptive basis. The effective date to be assigned is the date of receipt of claim or date entitlement arose, whichever is later. Id. Therefore, as the Veteran originally filed a claim for service connection in April 2015, the appropriate effective date for the grant of service connection is April 7, 2015 (date VA received original claim). Accordingly, the Board finds that an earlier effective date of April 7, 2015, but no earlier, for the grant of service connection for diabetes mellitus is warranted; and the claim is granted. 2. Entitlement to service connection for sleep apnea. The Veteran contends that his current sleep apnea had its onset during active duty service or is otherwise directly related to his active duty service. Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). After review of the record, the Board finds that service connection for sleep apnea is warranted. Service treatment records (STRs) are silent for any complaints, treatments, or diagnosis of sleep apnea, or any symptoms involving the Veteran's sleep. However, post-service VA and private treatment records reveal complaints of and diagnosis for obstructive sleep apnea, to include the use of a CPAP machine for treatment. Lay statements submitted by the Veteran's wife and two former shipmates note that they witnessed the Veteran's loud, disruptive snoring and intermittent breathing during sleep while on active duty. See Buddy/Lay Statements, April 2017. In June 2018, the Veteran submitted a private medical opinion from his treating pulmonary specialist, who diagnosed the Veteran with mild obstructive sleep apnea and noted treatment in the form of an auto-titrating CPAP device. The specialist opined that, based on reviewing the Veteran's clinical and sleep history, along with lay statements of reported snoring, fatigue, and periods of apnea during active duty service, it is his clinical standpoint that the Veteran more likely than not, suffered from symptoms and complications of sleep apnea during his period of active duty service. Adding that, sleep apnea does not come suddenly but instead slowly develops and worsens over many years; and therefore, although the Veteran's sleep apnea was not diagnosed until after is military duty ended, he began suffering from this disorder while still on active duty, which has continued to present day. See Private treatment record, June 2018. In December 2019, the Veteran was afforded a VA examination to assess the current nature and etiology of his claimed condition. Upon examination, the examiner diagnosed the Veteran with obstructive sleep apnea; however, provided an unfavorable opinion as to this condition being etiologically related to the Veteran's active duty service. The examiner's basis was due to the Veteran being presumed sound upon entry, a lack of diagnosis for 30 years post-service, and the fact that the most significant risk factor for his sleep apnea is aging. See C&P Exam, December 2019. While the Board acknowledges that the December 2019 VA examiner provided an opinion tending to weigh against the Veteran's claim, the Board finds this medical opinion to be inadequate for adjudicative purposes, as the examiner failed to consider and discuss the Veteran's competent and credible lay statements regarding the nature and onset of symptoms; as well as, failed to consider and/or discuss the June 2018 positive private medical opinion. Additionally, the examiner's reliance on the Veteran being sound upon entry is not a proper standard for which to base an unfavorable opinion, as the Veteran's condition was not pre-existing. Due to this, the Board assigns this VA medical opinion little, if any, probative weight. Conversely, the Board finds the June 2018 private medical opinion to be highly probative, as the examiner, who specializes in conditions of the lungs, provided a detailed rationale/discussion based on the Veteran's medical history and lay statements. Based on the above, the Board notes that the probative evidence of record is in favor of the Veteran's claim, or at the very least, in relative equipoise, as to his sleep apnea having an onset during active service or otherwise being related to his active service. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran's sleep apnea is warranted; and the claim is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990); 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, 3.310. 3. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, hypothyroidism, and or sleep apnea. In general, a claim which has been denied in an unappealed rating decision or Board decision may not thereafter be reopened an allowed. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.200. An 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. The Board must consider the question of whether new and material evidence has been received to adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, then the Board's analysis must end, and what was previously determined by the RO in that regard becomes irrelevant. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). For VA purposes, "new" evidence is existing evidence not previously submitted to agency decision makers; and "material" evidence is 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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In Shade v Shinseki, 24 Vet. App. 110 (2010), the Court indicated that new and material evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it at least triggers the duty to assist by providing a medical opinion. The Court also held that 38 C.F.R. § 3.156 (a) "must be read as creating a low threshold," and that "the phrase 'raises a reasonable possibility of establishing the claim' must be viewed as enabling rather than precluding reopening." Shade at 117. Furthermore, the Court noted that "[t]he Board's analysis of the issue of reopening must be confined to the subject of the existence of new and material evidence alone and must not be an outcome-based decision." Id. at 121. The Veteran was originally denied service connection for his hypertension in a July 2015 rating decision. The Veteran did not appeal this decision. Therefore, the July 2015 rating decision constitutes a final decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.302, 20.1103. Subsequently, in April 2017, the Veteran filed a claim to reopen, which the RO denied in the July 2017 rating decision, finding that the Veteran's additional evidence submitted did not constitute new and material evidence under the applicable VA laws. The Board notes that the July 2017 rating decision represents the most recent decision regarding the issue of entitlement to service connection for hypertension. The evidence of record at the time of the July 2015 rating decision included the Veteran's military personnel/service treatment records, unrelated VA treatment records, unrelated VA examinations, and private treatment records noting a diagnosis of hypertension. In the July 2015 rating decision, the RO denied the Veteran's claim due to the Veteran's service treatment records (STRs) being silent for any type of hypertension, along with a lack of link to service. Since then, the VA has received additional VA and private treatment records, which further reflect treatments and diagnoses of hypertension; a private medical opinion possibly relating hypertension to the Veteran's sleep apnea; and lay statements from the Veteran raising additional possible links to service on a secondary basis. As stated above, the Board must consider the old and new evidence of record, as a whole, in addressing whether reopening of the claim should be allowed. Therefore, given the low threshold, the Board finds that the additional evidence of record noted above is both new and material, as it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for entitlement to service connection for hypertension, to now include as secondary to service-connected diabetes mellitus, hypothyroidism, and/or sleep apnea. Accordingly, the Board finds that reopening of the claim is warranted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, hypothyroidism, and/or sleep apnea, is remanded. The Veteran contends that his current hypertension is directly related to his active duty service; or is otherwise, proximately caused or aggravated by his service-connected diabetes mellitus and/or hypothyroidism, to include medications taken to treat these conditions. Additionally, the record has reasonably raised the contention of hypertension being proximately caused or aggravated by his service-connected sleep apnea. After review of the record, the Board notes that, to date, the Veteran has not been afforded a VA examination and medical opinion assessing the current nature and etiology of his claimed condition. Pursuant to VA's duty to assist regarding a claim for disability compensation, the VA must afford a veteran a medical examination and/or obtain a medical opinion when, after review of the record, the VA finds it necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In service connection claims, such as the case here, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board acknowledges the Veteran has the current disability of hypertension, based on the assessment of competent and credible private medical evidence in the record. See 38 U.S.C. § 5103A(d)(2)(A); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002). The record also suggests a possible relationship between this current disability and the Veteran's active service, as the Veteran contends his current hypertension is related to in-service elevated blood pressure readings; or otherwise proximately caused or aggravated by his service-connected diabetes mellitus and/or hypothyroidism, to include medications taken to treat these conditions. See Statement In Support of Claim, July 2018. Additionally, a June 2018 private medical opinion relates the Veteran's hypertension to untreated sleep apnea. Given the "low threshold" standard for determining when a VA examination is necessary, the Board finds that the requirements have been met. Consequently, the Board finds that a remand for such examination is necessary. McLendon, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his hypertension and obtain any outstanding records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran's hypertension. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the reported in-service elevated blood pressure readings. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was proximately caused or aggravated by the Veteran's service-connected diabetes mellitus and/or hypothyroidism, to include any medications prescribed and taken for treatment of these conditions. Please note: the examiner must address both causation and aggravation in providing the opinions requested above. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was proximately caused or aggravated by the Veteran's service-connected sleep apnea. Please note: the examiner must address both causation and aggravation in providing the opinions requested above. Additionally, the examiner must address the June 2018 private medical opinion. (d) Any opinion should include a detailed rationale. The examiner should consider the entire claims file and discuss the Veteran's lay statements regarding the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that he reports must be considered in formulating the requested opinion. (Continued on the next page) (e) If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, 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.