Citation Nr: 21027068 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-10 191 DATE: May 4, 2021 ORDER New and material evidence has been received and the petition to reopen a claim of entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. A May 2014 rating decision denied service connection for a sleep disorder. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. 2. Evidence received since the May 2014 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of service connection for obstructive sleep apnea. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1992 to April 2001. This matter comes to the Board of Veterans' Appeals (Board) from a November 2015 rating decision which reopened a claim of service connection for sleep apnea (previously claimed as sleep disorder), but continued to deny the claim on the merits. In July 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Reopening of Claims The Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of service connection for obstructive sleep apnea before addressing the claim on the merits. 38 U.S.C. § 7104; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 19.20, 19.52. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, the agency of jurisdiction (AOJ) shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been submitted) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen a claim of entitlement to service connection for obstructive sleep apnea A May 2014 rating decision denied service connection for a sleep disorder because the evidence did not show a link between the Veteran's sleep disorder and military service, specifically a theory of secondary service connection based on service-connected bilateral retropatellar pain syndrome or plantar fasciitis. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. In July 2015, the Veteran attempted to reopen his claim. Since the May 2014 rating decision, evidence added to the claims file includes the Veteran's July 2020 hearing testimony that he had difficulty sleeping since 1995 and that his wife told him that he snored and stopped breathing while sleeping. While the May 2014 rating decision considered a theory of secondary service connection, the rating decision did not consider a theory of direct service connection based on the Veteran's lay statements. Essentially, the Veteran has raised a new theory of entitlement to reopen his claim. A new theory of entitlement does not, on its face, constitute new and material evidence unless evidence supporting the new theory of entitlement is, itself, new and material. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); Ashford v. Brown, 10 Vet. App. 120, 123 (1997). However, given the "low" threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that new and material evidence has been received concerning this claim and, thus, it is reopened. The Veteran is competent to report his symptoms and what he has been told by family members. The Veteran's lay statements were not in the evidence of record at the time of the last prior final denial and satisfy the low threshold of raising a reasonable possibility of substantiating the claim. Therefore, the Board finds that new and material evidence has been received since the May 2014 rating decision and reopening the claim of service connection for obstructive sleep apnea is warranted. The Veteran's petition is granted only to this extent. REASONS FOR REMAND The Board finds that it cannot make a fully-informed decision at this time. While a VA opinion on secondary service connection was obtained for the May 2014 rating decision, no VA opinion was obtained for the November 2015 rating decision on appeal to the Board. The Veteran separated from service in April 2001, and an October 2001 sleep study confirmed moderate obstructive sleep apnea. At the July 2020 hearing, the Veteran testified that he had difficulty sleeping since 1995 and that his wife told him that he snored and stopped breathing while sleeping. Because the Veteran is competent to report his symptoms and what he has been told by family members, a VA examination is necessary to determine whether the Veteran's obstructive sleep apnea is related to service. On remand, the examiner should consider the Veteran's lay statements and his service treatment records, to include a May 1994 record where the Veteran reported lack of sleep. On remand, the AOJ should update the Veteran's VA treatment records and associate the January 2011 sleep study scanned into vista imaging with the claims file. In written pleadings, to include the April 2016 Notice of Disagreement, the Veteran asserted that service connection is warranted because obstructive sleep apnea was diagnosed within one year of separation from service. To the extent that the Veteran is asserting that service connection is warranted for a chronic disease that is shown within the one-year presumptive period under 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a), the Board notes that obstructive sleep apnea is not a chronic disease listed in 38 C.F.R. § 3.309(a) that is subject to presumptive service connection. At the July 2020 hearing, the Veteran's representative stated that several studies have indicated that most people who have severe sinusitis often have obstructive sleep apnea. To the extent that the representative is asserting that the Veteran's obstructive sleep apnea is related to sinusitis, the Board notes that the Veteran is not service connected for sinusitis and, thus, a theory of secondary service connection due to sinusitis cannot be currently considered. The Board further notes that the representative has not submitted such studies. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from December 2017 to the present. 2. Associate the January 2011 sleep study scanned into vista imaging with the Veteran's claims file. 3. Schedule the Veteran for a VA examination for his obstructive sleep apnea. The examiner must review the claims file and provide a rationale for the following opinion. The examiner must opine whether this disability at least as likely as not is related to or began during service. The examiner should consider the Veteran's lay statements and the Veteran's service treatment records, to include a May 1994 record where the Veteran reported lack of sleep. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.