Citation Nr: 21032516 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-04 685 DATE: May 27, 2021 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for sleep apnea is warranted. New and material evidence having been received, reopening of the claim of entitlement to service connection for bilateral flatfoot is warranted. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for bilateral flatfoot is remanded. Entitlement to service connection for foot injuries of the right foot is remanded. Entitlement to an initial compensable rating for allergic rhinitis. FINDING OF FACT 1. In an April 2010 rating decision, the regional office (RO) denied the Veteran's claim for service connection for sleep apnea; the Veteran did not perfect an appeal of that decision or submit new and material evidence within one year of notification and the decision is final. 2. Evidence submitted since the April 2010 rating decision is new and material and the appeal is reopened. 3. In an April 2010 rating decision, the regional office (RO) denied the Veteran's claim for service connection for bilateral flatfoot; the Veteran did not perfect an appeal of that decision or submit new and material evidence within one year of notification and the decision is final. 4. Evidence submitted since the April 2010 rating decision is new and material and the appeal is reopened. 5. Resolving reasonable doubt in the Veteran's favor, sleep apnea is at least as likely as not related to service. CONCLUSIONS OF LAW 1. New and material evidence since the April 2010 final decision has been submitted to allow the reopening of the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (d). 2. New and material evidence since the April 2010 final decision has been submitted to allow the reopening of the claim of entitlement to service connection for bilateral flatfoot. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (d). 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to November 1996. These matters come to the Board of Veterans' Appeals (Board) on appeal from July 2016 and June 2017 rating decisions by the RO. In January 2021, the Veteran testified at a Board hearing. A transcript of that hearing is of record. Under Rice v. Shinseki the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran's increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009) here, however, the evidence does not implicate a separate claim for TDIU as the Veteran is employed and does not contend unemployability. New and Material Evidence Generally, a claim that has been denied in an unappealed Agency of Original Jurisdiction (AOJ) decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). VA denied service connection for sleep apnea and fallen arches in an April 2010 rating decision. In that decision, the RO found that service treatment records demonstrated the Veteran's reports of feeling tired but there was no evidence of sleep apnea in service. The RO additionally found that there were no current diagnoses of pes planus or any other disabling arch condition. The Veteran did not submit a timely appeal with the rating decision, and it became final. Included in the evidence submitted since the April 2010 rating decision are new March 2017 VA examinations wherein the examiners provide opinions as to the cause of the Veteran's conditions, a November 2018 letter from a private physician in support of the Veteran's foot claims and a December private disability benefits questionnaire of the feet as well as buddy statements of observed trouble sleeping in service and thereafter and medical articles discussing sleep and rhinitis. This evidence is new, as it was not before VA at the time of the April 2010 rating decision. Further, it is material, as it speaks to the issue of whether there is a nexus between the Veteran's conditions and service. Thus, the issue of entitlement to service connection for sleep apnea is reopened and considered on its merits immediately below and the issue of service connection for flat feet is discussed in the Remand section below for additional development. Service Connection for Sleep Apnea The Veteran asserts that he has obstructive sleep apnea which is related to his service. The Veteran is shown to have a diagnosis of sleep apnea, thus the question for the Board is whether the evidence is at least in equipoise as to whether the Veteran's current sleep apnea is related to service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records demonstrate that in February 1995, the Veteran requested a blood work up because of tiredness. Treatment records do not demonstrate additional findings demonstrating a sleep disorder. However, the record includes a July 2017 statement from the Veteran's brother who noted that when the Veteran came home while he was in service, he would complain of being tired all the time, even after waking in the morning. Further, two of the Veteran's employers stated in July 2017 correspondences that they employed the Veteran between 1996 and 1998 and that the Veteran fell asleep often at work and sought medical attention to see why he couldn't stay awake. In a July 2017 statement, the Veteran's girlfriend, B.H., reported that she had observed the Veteran's fatigue and troubled sleeping for years. In August 2019, the Veteran's buddy, E.B. submitted a statement in support of the Veteran's claim that he was the Veteran's roommate during some of his service and observed that the Veteran had irregular sleeping and aggressive snoring. He stated that several times when the Veteran slept, he appeared to stop breathing and that the Veteran complained of fatigue often. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current sleep apnea arose in service. The Veteran is shown to have a present disability and symptoms consistent with that disability are reported by the Veteran and buddies during service and thereafter. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to Service Connection for Bilateral Flatfoot is Remanded. Entitlement to Service Connection for a Right Foot Injury is Remanded. In March 2017, the Veteran was afforded a VA foot examination. The VA examiner found that the Veteran did not have a diagnosis of pes planus or right foot injuries. It was noted that the Veteran was diagnosed with normal feet with 2011- and 2017-foot x-rays demonstrating normal feet. In contrast, the Veteran submitted a disability benefits questionnaire from private physician Dr. R.A., who found that x-rays showed no fractures but an achilles tendon spur and arthritic feet. Dr. R.A. provided diagnoses of achilles tendonitis and bilateral pes planus. In a correspondence, Dr. R.A. stated that he had treated the Veteran for left and right heel pain for some time and that it was his understanding that the Veteran had pain in his heels since approximately 1995 in service. Dr. R.A. stated that on his examination the Veteran was found to have chronic pain into the back of his heel and chronic pain from fallen arches which was common from extensive time on the feet as well as due to marches. It was his opinion that the Veteran's foot disorders were due to his service. Given the vastly different findings of the Veteran's VA examiner and Dr. R.A., a new examination would be helpful. The Board may not make medical conclusions and thus a new VA examination is necessary to reconcile these varying medical opinions. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. Entitlement to an Initial Compensable Rating for Allergic Rhinitis During his January 2021 Board hearing, the Veteran indicated that his rhinitis was worse than reflected in his noncompensable disability rating and that his previous, March 2017 examiner did not conduct a thorough physical examiantion. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of rhinitis. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed bilateral flatfoot and right foot injury disabilities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a) Is a bilateral flatfoot disability at least as likely as not related to service? b) Is a right foot injury to include achilles tendonitis at least as likely as not related to service? Provide a rationale to support the opinion(s). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected allergic rhinitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Then readjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Slovick, 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.