Citation Nr: 21029867 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-38 832 DATE: May 17, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened, to this extent only the claim is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for sleep apnea was previously denied by a June 2014 decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the June 2014 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2014 rating decision denying service connection for a sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to May 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's Representative submitted correspondence in September 2020, stating that they no longer wished to be a co-located Veteran service organization at the Board and would no longer have the opportunity to submit Informal Hearing Presentations (IHPs) "but still can represent cases to the Board of Veterans' Appeals." New and Material Evidence The Veteran's claim of service connection for sleep apnea was originally denied by a June 2014 rating decision. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The June 2014 rating decision denied the claim of service connection for sleep apnea based on the lack of evidence of a current diagnosed disability. Evidence added to the record since the June 2014 denial includes private treatment records received in November 2015, which includes results of a September 2015 sleep study that indicated that the Veteran had severe obstructive sleep apnea. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the June 2014 rating decision. It is also material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea and raises a reasonable possibility of substantiating the claim for purposes of reopening the claim. Since the evidence is both new and material, the claim of service connection for sleep apnea is reopened. REASONS FOR REMAND Regarding the claim for service connection for sleep apnea, the Board notes that the Veteran underwent a VA examination in December 2015. The examiner found that the Veteran's sleep apnea was less likely than not related to his active service. The examiner noted that if symptoms of non-restorative sleep and heroic snoring were incurred in service (as indicated by the November 2015 statement of J.B.), the Veteran left service in 2003 and it would have been medically expected that there would be medical visits soon after leaving service rather than twelve years later in 2015. Snoring was not diagnostic of sleep apnea thus there was not enough objective evidence to link sleep apnea to service. While the examiner noted statements of the Veteran and his wife in the medical history section of the examination report, it does not appear that the examiner considered the statements when providing the rationale for the negative nexus opinion. The Veteran stated that he had symptoms of waking up tired, headaches, and falling asleep driving around 1998. He did not have time to get evaluated while working in the ship and he was finally convinced by his wife to get evaluated in 2015. The Veteran's wife stated in December 2015 that the Veteran's sleep pattern changed following a fire aboard the USS White Plains. He would wake up in the middle of the night gasping for air and would snore very loudly. Sometimes his breathing would stop. She also indicated that they would argue over his sleep problems and due to her constant prodding, he eventually went to see a doctor and was diagnosed with sleep apnea. The examiner only considered the statement from J.B. from November 2015. A medical opinion that does not consider all evidence of record, including the Veteran's lay statements is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). On remand, an addendum medical opinion that considers all evidence of record, including the lay statements of the Veteran and his wife, must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's sleep apnea. The electronic claims file and a copy of this remand must be reviewed by the clinician. A new VA examination of the Veteran need not be ordered, unless the medical professional providing the opinion determines that one is necessary. Following a complete review of the evidence of record, including the November 2015 statement from J.B., the Veteran's statements noted in the December 2015 VA examination report, and the December 2015 lay statement from the Veteran's wife, the clinician must provide the following opinion: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's sleep apnea is related to his active duty service. A complete rationale for each opinion is required. Citation to accepted medical principles/literature would be of great assistance to the Board. If the clinician is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.