Citation Nr: 21031155 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-22 780 DATE: May 20, 2021 ORDER New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a right shoulder condition. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for sleep apnea. REMANDED Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a right shoulder condition was denied in a January 2007 rating decision because there was no evidence of an in-service event and there was no evidence of a link between a shoulder condition and his military service. As the Veteran did not appeal or submit new and material evidence within the applicable appellate period, the decision became final. 2. In a September 2010 rating decision, the Agency of Original Jurisdiction (AOJ) declined to reopen the Veteran's claim of entitlement to service connection for a right shoulder condition, finding that new and material evidence had not been received. 3. In an August 2013 rating decision, the AOJ reopened and continued the denial of the Veteran's claim of entitlement to service connection for a right shoulder condition because there was no evidence of an in-service event and there was no evidence of a link between a shoulder condition and his military service. 4. In September 2013, the Veteran submitted a supplemental claim seeking, inter alia, to reopen his claim of entitlement to service connection for a right shoulder condition. 5. In a March 2014 rating decision, the AOJ again reopened and continued the denial of the Veteran's claim of entitlement to service connection for a right shoulder condition because was no evidence of an in-service event and there was no evidence of a link between a shoulder condition and his military service. 6. The evidence which has been secured since the last final denial regarding service connection for a right shoulder condition is both new and material. 7. The Veteran's claim of entitlement to service connection for sleep apnea was denied in a June 2011 rating decision because there was no evidence of an in-service event and there was no evidence of a link between his sleep apnea and his military service. As the Veteran did not appeal or submit new and material evidence within the applicable appellate period, the decision became final. 8. In an August 2013 rating decision, the AOJ declined to reopen the Veteran's claim of entitlement to service connection for sleep apnea, finding that new and material evidence had not been received. 9. In a March 2014 rating decision, the AOJ again declined to reopen the Veteran's claim of entitlement to service connection for sleep apnea, finding that new and material evidence had not been received. 10. The evidence which has been secured since the last final denial regarding service connection for sleep apnea is both new and material. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran's claim of entitlement to service connection for a right shoulder condition have been met. 38 U.S.C. §§ 1145(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for reopening the Veteran's claim of entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1145(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1990 to May 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions, dated August 2013 and March 2014, issued by a Department of Veterans Affairs (VA) regional office. In March 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See March 2020 Board Hearing Transcript. As an initial matter, the Board notes the Veteran's claim of entitlement to service connection for a right shoulder condition was reopened and again denied in an August 2013 rating decision. Though the Veteran did not appeal, within one year of that denia, he submitted a new claim to reopen the same disability and additional evidence was added to the file. See September 2013 VA Form 21-526b; March 2014 D.B. Lay Statement. Therefore, the August 2013 rating decision did not become final. New and Material Evidence Generally, rating decisions that are not timely appealed are final. See 38 U.S.C. § 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 because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which, 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 order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim have been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). 1. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a right shoulder condition. As discussed above, the record reflects that the August 2013 rating decision did not become final. Prior to the August 2013 rating decision, the Veteran's claim of entitlement to service connection for a right shoulder condition was last denied in a January 2007 rating decision. The Veteran did not appeal the decision and accordingly that decision became final. 38 C.F.R. § 20.1103. Since the last final denial, the Veteran has submitted lay statements regarding an in-service armored personnel carrier (APC) accident that resulted in a shoulder injury, a statement from his treating physician indicating that his current right shoulder condition may be the result of an in-service motor vehicle accident, and the Veteran has testified before the undersigned VLJ regarding an in-service APC accident. See November 2009 VA Form 21-4138; February 2012 Correspondence; March 2014 DB Lay Statement; August 2019 T.B. Lay Statement; July 2013 Physician Statement; March 2020 Board Hearing Transcript. The Board finds this evidence to be "new" as it was not previously of record. Further, the Board finds this evidence to be material as it concerns unestablished facts, specifically, an in-service event and medical nexus. Given that there is new and material evidence, the claim is reopened. Notably, the claim requires further development, which is addressed in the remand section below. 2. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection sleep apnea. The record reflects that the Veteran's claim of entitlement to service connection for sleep apnea was last considered on the merits in a June 2011 rating decision. The Veteran did not appeal the decision and accordingly that decision became final. 38 C.F.R. § 20.1103. Since the last final denial, the Veteran has submitted lay statements regarding exposure to oil field fires, as well as onset of snoring during service, and has testified before the undersigned VLJ regarding exposure to oil field fires. February 2012 Correspondence; March 2014 DB Lay Statement; August 2019 T.B. Lay Statement; March 2020 Board Hearing Transcript. Additionally, the Veteran has undergone a VA examination regarding his service-connected posttraumatic stress disorder (PTSD), in which the examiner indicated that the Veteran's sleep apnea may be related to his PTSD. See August 2019 VA Review PTSD Disability Benefits Questionnaire (DBQ). The Board finds this evidence to be "new" as it was not previously of record. Further, the Board finds this evidence to be material as it concerns unestablished facts, specifically, an in-service event and medical nexus. Given that there is new and material evidence, the claim is reopened. Notably, the claim requires further development, which is addressed in the remand section below. REASONS FOR REMAND As an initial matter, the Board notes that it is well settled that VA is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or raised by the record. See Schroder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the record indicates that the Veteran's sleep apnea may be related to his service-connected PTSD. See August 2019 VA Review PTSD DBQ. Accordingly, the Board finds it appropriate to recharacterize the claim as one of entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. The Board also notes that the Veteran has asserted that his claim of entitlement to service connection for sleep apnea should be considered a claim for various respiratory sensitivity issues, to include sleep apnea, sinusitis, and allergic rhinitis. See March 2020 Correspondence. The Board acknowledges that, generally, when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, a claim for service connection may be expanded to include any disability that may reasonably be encompassed by the veteran's description of the claim, the symptoms the claimant describes, and the information the veteran submits or the Secretary obtains in support of the claim. See id. However, the Veteran filed a claim seeking service connection for sleep apnea, and prior to the March 2020 correspondence, has consistently characterized his claimed disability as sleep apnea. See October 2010 VA Form 21-4138. See February 2012 Correspondence; April 2012 VA Form 21-4138; June 2012 Correspondence; March 2020 Board Hearing Transcript. Additionally, though the Veteran has previously asserted that he has respiratory issues, he has clarified that his respiratory claim was limited to sleep apnea. See November 2009 VA Form 21-4138; January 2014 Decision Review Officer (DRO) Hearing Transcript. Moreover, while sleep apnea, sinusitis, and allergic rhinitis may each be considered, in the broadest sense, a respiratory condition, sleep apnea concerns airway restriction, while sinusitis and allergic rhinitis are nasal conditions. Further, the symptomatology associated with sleep apnea is different than that associated with sinusitis and allergic rhinitis. Specifically, sleep apnea symptomatology includes excessive daytime sleepiness, loud snoring, observed episodes of breathing cessation during sleep, abrupt awakenings accompanied by gasping or chocking, and awakening with a dry mouth or sore throat. See Mayo Clinic, Obstructive Sleep Apnea, https://www.mayoclinic.org/diseases-conditions/obstructive-sleep-apnea/symptoms-causes/syc-20352090 (last accessed May 18, 2021). On the other hand, sinusitis and allergic rhinitis share similar symptomology, including nasal inflammation, nasal congestion, postnasal drainage, runny, nose, and cough. See Mayo Clinic, Chronic Sinusitis, https://www.mayoclinic.org/diseases-conditions/chronic-sinusitis/symptoms-causes/syc-20351661 (last accessed May 18, 2021); Mayo Clinic, Hay fever, https://www.mayoclinic.org/diseases-conditions/hay-fever/symptoms-causes/syc-20373039 (last accessed May 18, 2021). Thus, sinusitis and allergic rhinitis cannot reasonably be encompassed in a claim for sleep apnea. As such, the Board finds that Clemons does not apply in this case, and the Board does not have jurisdiction to adjudicate a claim for various respiratory sensitivity issues, to include sinusitis and allergic rhinitis, at this time. If the Veteran believes that such conditions are related to his active duty service, he is encouraged to submit a claim seeking service connection for such. 1. Entitlement to service connection for a right shoulder condition is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to afford the Veteran with an adequate examination regarding the nature and etiology of his claimed right shoulder condition. In June 2010, the Veteran was afforded a VA examination in which he reported onset of shoulder pain in 1991. The examiner noted a diagnosis of right shoulder degenerative joint disease. Ultimately, the examiner opined that the Veteran's right shoulder condition was not related to his military service. In support of this opinion, the examiner noted that the Veteran's service treatment records (STRs) were silent for an on-going medical condition or treatment for a chronic shoulder problem. See June 2010 VA Shoulder Examination. However, the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, since the June 2010 examination, the Veteran has submitted lay statements regarding an in-service APC accident that resulted in a shoulder injury, and a statement from his treating physician indicating that his current right shoulder condition may be the result of an in-service motor vehicle accident. See February 2012 Correspondence; March 2014 DB Lay Statement; August 2019 T.B. Lay Statement; July 2013 Physician Statement. As these statements were submitted after the June 2010 examination, the examiner was unable to consider such, and therefore the June 2010 examination cannot be considered adequate for decision-making purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the June 2010 examination to be inadequate for adjudication purposes. As such, a remand is necessary to provide the Veteran with an adequate examination regarding the nature and etiology of the Veteran's right shoulder condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to afford the Veteran with an examination regarding the nature and etiology of his sleep apnea. A medical examination is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service event, injury, or disease, and (3) an indication that the disability or symptoms may be associated with service or a service-connected condition, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2). Here, the Veteran's treatment records indicate that he has a current diagnosis of sleep apnea. See Atlanta VA Medical Center (VAMC) records, received July 2019 in CAPRI. Additionally, the Veteran has asserted that he experienced prolonged exposure to smoke from oil field fires in Iraq, and has submitted lay statements corroborating such exposure and attesting to observing the onset of snoring following such exposure. See February 2012 Correspondence; March 2014 DB Lay Statement; August 2019 T.B. Lay Statement; March 2020 Board Hearing Transcript. Further, the evidence indicates that the Veteran's sleep apnea may be related to his service-connected PTSD. See August 2019 VA Review PTSD DBQ. However, there is no medical opinion regarding the nature and etiology of the Veteran's sleep apnea. Accordingly, the Board finds that the McLendon requirements are met and the Veteran should be provided a VA examination to determine the nature and etiology of his sleep apnea. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the claims file any outstanding pertinent medical records, whether VA or private, including records relating to treatment at Atlanta VAMC from July 2019 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of his claimed right shoulder condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed right shoulder condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran active duty service. (c.) In formulating the requested opinions, the examiner is asked to specifically consider and address: i. The Veteran's lay history; ii. The Veteran's reports of an in-service APC accident; iii. Lay statements from D.B. and T.B., reporting an in-service APC accident in which the Veteran injured his shoulders; and iv. The July 2013 statement from the Veteran's treating physician, indicating that the Veteran receives treatment for right shoulder pain that is the result of an in-service motor vehicle accident. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service evidence of a particular condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. After completing the development in Section One above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of his diagnosed sleep apnea. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's sleep apnea had its onset during, or is otherwise related to, the Veteran's active duty service, to include extended exposure to burning oil fields. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's sleep apnea is caused by a service-connected condition, to include PTSD. iii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's sleep apnea underwent an incremental increase (aggravated), regardless of permanence, due to a service-connected condition, to include PTSD. (c.) In formulating the requested opinions, the examiner is asked to specifically consider and address: i. The Veteran's lay history, including reports of extended exposure to oil field fires; ii. Lay statements from D.B. and T.B. reporting the Veteran experienced exposure to oil field fires, and a report that his snoring began after such exposure; and iii. The August 2019 VA examiner's note that the Veteran's sleep apnea is relevant to the understanding or management of his PTSD. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service evidence of a particular condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.