Citation Nr: 22015248 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-58 682A DATE: March 16, 2022 ORDER The appeal as to whether new or material evidence has been received to reopen a claim for service connection for right ear hearing loss is dismissed. The appeal as to whether new or material evidence has been received to reopen a claim for service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. An April 2019 rating decision implicitly granted service connection for right ear hearing loss, and rated this disability as bilateral hearing loss; the claim to reopen service connection for right ear hearing loss is rendered moot because there is no justiciable case or controversy for active consideration by the Board. 2. A November 2013 rating decision, in pertinent part, denied entitlement to service connection for sleep apnea, no appeal was taken from that determination and no new and material evidence was received during the appeal period; however, evidence received subsequent to the November 2013 rating decision is new, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal as to the issue of whether new or material evidence has been received to reopen a claim for service connection for right ear hearing loss are met. 38 U.S.C. § 7105. 2. Evidence added to the record since the final November 2013 rating decision, which in pertinent part, denied entitlement to service connection for sleep apnea, is new and material, and the claim for service connection is reopened. 38 U.S.C. §§ 5108, 7105 (c); 38 C.F.R. §§ 3.104, 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 January 1977 to January 1997. The Board sincerely thanks the Veteran for his lengthy and honorable service to our country. These matters come before the Board of Veterans' Appeals (Board) from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The December 2014 rating decision, in pertinent part, found new and material evidence had been received to reopen the claims for service connection for right ear hearing loss and obstructive sleep apnea. Additional relevant evidence developed by VA, including an April 2019 hearing loss and tinnitus examination report, was received subsequent to certification and transfer of this appeal to the Board. However, in February 2022 correspondence, the Veteran explicitly waived initial consideration of this evidence by the Agency of Original Jurisdiction (AOJ). Specifically noted in that waiver were VA examination reports and VA treatment records. Regardless, as the claim to reopen service connection for right ear hearing loss is dismissed, and the claim to reopen service connection for obstructive sleep apnea is granted and remanded on the merits, there is no prejudice to the Veteran in this regard. As a final initial matter, in the Veteran's December 2016 substantive appeal, which perfected the appeal herein, he requested a hearing before a Veterans Law Judge. VA correspondence dated in June 2021 notified the Veteran that a Board hearing had been scheduled for August 5, 2021. However, the Veteran did not report for the scheduled hearing and no good cause was shown for his absence; therefore, the hearing request is deemed withdrawn. 38 U.S.C. § 20.704 (d). 1. Whether new or material evidence has been received to reopen a claim for service connection for right ear hearing loss During the pendency of the Veteran's claim to reopen entitlement to service connection for right ear hearing loss, an April 2019 rating decision implicitly granted service connection for right ear hearing loss, and rated this disability as bilateral hearing loss. Specifically, the April 2019 rating decision discussed, in pertinent part, as to the Veteran's right ear, he had a speech discrimination of 98 percent and a puretone threshold average of 21 decibels. Thus, as April 2019 rating decision rated right ear hearing loss as part and parcel of bilateral hearing loss, the claim service connection for right ear hearing loss was implicitly granted in the April 2019 rating decision. This represents a complete grant of the benefit sought on appeal. Furthermore, the Veteran has not expressed disagreement with either the disability evaluation or effective date assigned. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Consequently, no case or controversy remains within the Board's jurisdiction, and the appeal is dismissed. See 38 U.S.C. § 7105. 2. Whether new or material evidence has been received to reopen a claim for service connection for obstructive sleep apnea Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. § 7105. 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran's claim for service connection for obstructive sleep apnea was previously finally denied. In this regard, a November 2013 rating decision, in pertinent part, denied entitlement to service connection for sleep apnea, as this condition was neither occurred in nor caused by service. He was notified of the decision later the same month. The Veteran did not appeal the denial of the claim and no new and material evidence was received within the appeal period. Following the November 2013 rating decision, the record also reflects that additional service records were associated with the record, including in November 2014, February 2019 and April 2020. However, as to the service treatments records with a receipt date in August 2014, review of the Veterans Benefits Management System reflects these records were uploaded in August 2014, and this date is thus associated the scanning date rather than the date of receipt of these records. Additionally, the November 2013 rating decision explicitly referenced review of the Veteran's service treatment records. Moreover, to the extent additional service records were received after the November 2013 rating decision, these records are not relevant as they do not address a factual issue that were dispositive against the Veteran in the November 2013 rating decision as to his claim for obstructive sleep apnea. Kisor v. McDonough (Kisor IV), 995 F.3d 1347 (Fed. Cir. 2021). Thus, the November 2013 rating decision is final. 38U.S.C. §7105 (c); 38C.F.R. §§3.104, 20.302, 20.1103. Further, the Veteran has not argued the November 2013 rating decision is not final. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). New evidence added to the record since the November 2013 rating decision, includes articles discussing sleep apnea submitted by the Veteran in December 2016. These articles discussed what happened if sleep apnea was left untreated, and symptoms of sleep apnea, such as morning headaches. In a corresponding December 2016 statement, the Veran asserted he had symptoms of sleep apnea in service, such as headaches. This evidence is material as to the Veteran's claim for service connection for obstructive sleep apnea because it provides a nexus between the Veteran's obstructive sleep apnea and his service, and is presumed credible for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. Accordingly, the claim for service connection for obstructive sleep apnea is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The November 2013 VA examiner noted the Veteran's wife's October 2012 statement that she observed that the Veteran would "stop breathing" while sleeping during service, and although the wife stated she knew the Veteran from 1993, the examiner speciously assumed that she could not have observed the Veteran's sleeping habits prior to their marriage in 1997. The examiner did not address whether the wife's observations indicated that the Veteran's obstructive sleep apnea had its onset in service. Rather, in providing an opinion, the examiner cited only to a lack of contemporaneous treatment records in the Veteran's service treatment records. As such, an addendum opinion with an adequate rationale is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). This matter is REMANDED for the following actions: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his obstructive sleep apnea. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. After the action requested in paragraph 1 above is complete, please obtain a medical opinion to determine the etiology of the Veteran's obstructive sleep apnea. The Veteran's claims-file must be made available to and reviewed by the clinician. Based on review of the entire record, the clinician should provide an opinion as to: Whether it is at least as likely as not that the Veteran's obstructive sleep apnea is related to service? Whether symptoms such as pauses in breathing during sleep, headaches, and high blood pressure are indicative of sleep apnea? In responding to the above, the clinician is requested to consider and address, as appropriate: August 1983 report of medical history noting frequent or severe headache, ear, nose and throat trouble, and car, train and/or air sickness. July 1996 report of medical history noting shortness of breath. The October 2012 lay statement that the Veteran's wife observed pauses in the Veteran's breathing from 1993 to 1997. The article submitted in December 2016 entitled, "Q&A: What happens if sleep apnea is left untreated." The clinician is reminded that absence of contemporaneous treatment records cannot be the sole basis for a negative opinion. ONLY if the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination (or telehealth interview, etc., if an in-person examination is not feasible) to determine the nature and etiology of the disorder on appeal. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran with a supplemental statement of the case and afford him an opportunity to respond before the record is returned to the Board for further review. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O. Halpern 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.