Citation Nr: 21040479 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-58 661 DATE: July 3, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome (IBS), is reopened; the appeal is granted to this extent only. As new and material evidence has been received, the claim of entitlement to service connection for sleep apnea is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a gastrointestinal disorder, to include IBS, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable disability rating for residuals, fracture of left inferior orbit and maxillary sinus is remanded. FINDINGS OF FACT 1. A May 1995 unappealed rating decision denied service connection for IBS. 2. Evidence received since the May 1995 rating decision relates to an unestablished fact necessary to reopen the claim of entitlement to service connection for a gastrointestinal disorder, to include IBS. 3. A July 2011 unappealed rating decision denied service connection for sleep apnea. 4. Evidence received since the July 2011 rating decision relates to an unestablished fact necessary to reopen the claim of entitlement to service connection for obstructive sleep apnea. CONCLUSIONS OF LAW 1. The May 1995 rating decision in which the Regional Office denied service connection for IBS is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the May 1995 rating decision and the requirements to reopen the claim of entitlement to service connection for a gastrointestinal disorder, to include IBS, are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The July 2011 rating decision in which the Regional Office denied service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received since the July 2011 rating decision and the requirements to reopen the claim of entitlement to service connection for sleep apnea are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1973 to November 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a virtual Board hearing before the undersigned. Claims to Reopen Decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. New and material evidence must be received to reopen a claim which has been denied by a final decision. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a gastrointestinal disorder, to include IBS 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea May 1995 and July 2011 rating decisions denied the claims of entitlement to service connection for IBS and sleep apnea, respectively, based on findings that the evidence of record at the time failed to show a diagnosis of IBS and a nexus statement linking the Veteran's sleep apnea to his active military service. The Veteran did not appeal the RO's decisions, and they became final. In June 2013 and October 2013, the Veteran requested that his claims be reopened. Thereafter, the RO denied the Veteran's claims in a June 2014 rating decision. As such, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claims of entitlement to service connection for a gastrointestinal disorder, to include IBS, and sleep apnea. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board finds that new and material evidence has been presented to reopen the claims. Evidence added to the claims file subsequent to the May 1995 and July 2011 rating decisions includes post-service VA and private treatment records, lay statements from the Veteran and his friends and family, the April 2021 Board hearing transcript, and April 2021 correspondence from the Veteran to VA identifying relevant outstanding treatment records. This evidence is new since it is neither cumulative nor redundant of the evidence that was of record in May 1995, as to the Veteran's IBS claim, and July 2011, as to the Veteran's sleep apnea claim. Regarding the Veteran's claim for service connection for IBS, his April 2021 Board hearing testimony reflects ongoing reports of gastrointestinal symptoms, as well as outstanding post-service VA treatment records. Regarding the Veteran's claim for service connection for sleep apnea, his April 2021 Board hearing testimony reflects outstanding post-service VA treatment records from 1997, a few years after the Veteran separated from service. This evidence is material because, accepting the evidence as credible for the purpose of reopening the claims, the evidence tends to show reported symptoms of ongoing gastrointestinal symptoms, which may be associated with a current diagnosed gastrointestinal disorder, as well as outstanding post-service VA treatment records which may reflect treatment closer to separation from service for sleep apnea, as well as a possible nexus between the Veteran's diagnosed sleep apnea and service. Moreover, this evidence triggers VA's duty to assist the Veteran in obtaining the identified outstanding post-service VA treatment records. Thus, the Board finds that new and material evidence has been submitted and the petition to reopen the claims of entitlement to service connection for a gastrointestinal disorder, to include IBS, and sleep apnea must be granted. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for residuals, fracture of left inferior orbit and maxillary sinus is remanded. During his April 2021 Board hearing, the Veteran asserted that his left eye disability had worsened since his last VA eye examination in March 2014. Specifically, he indicated that he now experiences poorer visual acuity. Therefore, a new VA examination is needed to ensure that the record reflects the current severity of the Veteran's left eye disability. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to service connection for a gastrointestinal disorder, to include IBS, is remanded. 3. Entitlement to service connection for sleep apnea is remanded. During the Veteran's April 2021 Board hearing, he indicated that he received treatment in 1997 from Tricare for his sleep apnea. Additionally, in April 2021 correspondence, the Veteran asked VA to obtain and associate with his claims file post-service VA treatment records from the Decatur VA Medical Center (VAMC) from 1997 to July 2018; the Ralph Johnson VAMC in Charleston from 2013 to 2015; the Colorado Springs VAMC from July 2018 to July 2020; and the Dallas VAMC from July 2020 to the present day. These records are not in the Veteran's claims file, nor does it appear that VA attempted to obtain them. They appear relevant to the Veteran's claims as they may include further information pertaining to the Veteran's history of symptoms and treatment for his claimed gastrointestinal disorder and sleep apnea, as well as possible nexus statements as to service connection for a gastrointestinal disorder and sleep apnea. VA has a duty to seek these records. 38 U.S.C. § 5103A(b)(1). The matters are REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file, to specifically include Tricare from 1997; the Decatur VAMC from 1997 to July 2018; the Ralph Johnson VAMC in Charleston from 2013 to 2015; the Colorado Springs VAMC from July 2018 to July 2020, and the Dallas VAMC from July 2020 to the present. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. If possible, to expedite the case, the Veteran and/or his representative is asked to obtain these records themselves. This would greatly assist the Board. 2. Thereafter, Schedule the Veteran for a VA eye examination by an appropriate clinician to determine the current severity of his service-connected residuals, fracture of left inferior orbit and maxillary sinus. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. 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. (Continued on the next page) 3. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.