Citation Nr: 22017696 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-30 787 DATE: March 25, 2022 ORDER New and material evidence not having been received, the petition to reopen the previously denied claim for entitlement to service connection for a right ankle condition is denied. New and material evidence not having been received, the petition to reopen the previously denied claim for entitlement to service connection for a left ankle condition is denied. New and material evidence having been received, the petition to reopen the previously denied claim for entitlement to service connection for obstructive sleep apnea condition is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. An unappealed May 2010 rating decision continued and confirmed the previous denials of the claims for service connection for right and left ankle conditions; the claims had been previously denied in a rating decision dated in February 2007. 2. The evidence associated with the claims file subsequent to the May 2010 rating decision is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claims of entitlement to service connection for right and left ankle conditions. 3. An unappealed December 2015 rating decision continued and confirmed the previous denials of the claim for service connection for obstructive sleep apnea; the claim had been previously denied in rating decisions dated in May 2010 and September 2014. 4. The evidence associated with the claims file subsequent to the December 2015 rating decision is not cumulative or redundant of the evidence previously of record and does relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for obstructive sleep apnea. CONCLUSIONS OF LAW 1. The May 2010 rating decision that denied entitlement to service connection for a right ankle condition is final; new and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for a right ankle condition. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 2. The May 2010 rating decision that denied entitlement to petition to service connection for a left ankle condition is final; new and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for a left ankle condition. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 3. The December 2015 rating decision that denied entitlement to service connection for obstructive sleep apnea is final; new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for obstructive sleep apnea. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1995 to November 2005. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Wichita, Kansas. The Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board in September 2020. A transcript of the hearing has been associated with the claims file. Petitions to Reopen As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 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. New and material evidence can neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Bilateral Ankles The Veteran seeks reopening the previously denied claims of entitlement to service connection for right and left ankle conditions. Specifically, the Veteran testified at his Board hearing that his right and left ankle conditions had their onset during service due to the physical rigors and demands of his service, such as, jumps from helicopters, an automobile accident, physical exercise, and a weighted hike in Okinawa. See e.g. Board hearing transcript, September 24, 2020. The Veteran's original claims for entitlement to service connection for right and left ankle conditions was received by VA in October 2006 and was originally denied in a rating decision decided in February 2007. Specifically, the February 2007 rating decision indicated that the right ankle condition was denied due to a lack of current diagnosis, and that there was no evidence of the right ankle condition during service; and the left ankle condition was denied based on a finding that there was no permanent residual or chronic disability subject to service connection. As a result, his claims were denied. Evidence considered in the February 2007 rating decision included service treatment records and a January 2007 VA examination report. In February 2007, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claims for entitlement to service connection for right and left ankle condition was received until September 2009, when VA received a petition to reopen such claims. Therefore, the February 2007 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from February 2007 rating decision. See also Lang v. Wilkie, 971 F.3d 1348 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Although the Veteran's service personnel records were associated with the record sometime after this rating decision, such records are not relevant as they are not related to a claimed in-service event, injury, or disease. See 38 C.F.R. § 3.156(c). The Veteran filed a petition to reopen his previously denied claim for entitlement to service connection for right and left ankle conditions that was received by VA in September 2009 and was again denied in a May 2010 rating decision. Specifically, the May 2010 rating decision indicated that the Veteran's petition to reopen the previously denied claims for entitlement to service connection for right and left ankle conditions were considered reopened; however, the evidence did not show the conditions were incurred in or aggravated by service. As a result, his claims were again denied. Evidence considered in the May 2010 rating decision included service treatment records, post-service treatment records, statements, memorandums from the Veterans of Foreign War Service Officer and a March 2010 VA examination report. In May 2010, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claims for entitlement to service connection for right and left ankle disorders was received until February 2016, when VA received a petition to reopen such claims. Therefore, the May 2010 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from May 2010 rating decision. See also Lang v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. Although the Veteran's service personnel records were associated with the record sometime after this rating decision, such records are not relevant as they are not related to a claimed in-service event, injury, or disease. See 38 C.F.R. § 3.156(c). The Veteran filed the instant petition to reopen the previously denied claims for entitlement to service connection for right and left ankle conditions that was received by VA in February 2016. Additional evidence received since the May 2010 rating decision includes Board hearing testimony by the Veteran and his spouse. As noted above, the Veteran contends that his right and left ankle conditions were due to his active service, with symptoms that had its onset during active service, to include as due to the physical rigors of his service. The Board finds that while some of the newly received evidence added to the record is new, as it was not previously considered by VA, it is duplicative and not material as it does not specifically address the reason the claims were previously denied. Specifically, the evidence does not show that the Veteran's right and left ankle conditions were etiologically related to his active service. The Board acknowledges the statements and contentions of the Veteran and his spouse, to include their Board hearing testimony in September 2020, however, those statements were previously considered in the March 2010 VA examination report; and do not address the lack of nexus pertaining to the etiology of his right and left ankle conditions and active service. Essentially, the Veteran and his spouse are reiterating the Veteran's contentions for entitlement to service connection for right and left ankle conditions previously considered in the March 2010 VA examination. Notably, at the March 2010 VA examination, the VA examiner noted the Veteran's car accident, carrying heavy gear, service in Japan, and pain that had its onset during service. Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the Veteran's claims of entitlement service connection for right and left ankle conditions. Accordingly, reopening of such claims is not warranted and the appeals are denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Obstructive Sleep Apnea The Veteran seeks the reopening the previously denied claim of entitlement to service connection for obstructive sleep apnea. Specifically, the Veteran testified at his Board hearing that his obstructive sleep apnea symptoms had their onset during service and was caused or aggravated by his service-connected PTSD. See e.g. Board hearing transcript, September 24, 2020. The Veteran's original claim for entitlement to service connection for obstructive sleep apnea was received by VA in September 2009 and was originally denied in a rating decision decided in May 2010. Specifically, the May 2010 rating decision indicated that obstructive sleep apnea was not either occurred in or was caused by his military service. As a result, his claim was denied. Evidence considered in the May 2010 rating decision included service treatment records; post-service treatment records; polysomnogram results from April 2009; lay statements; memorandums from the Veterans of Foreign War Service Officer; and a March 2010 VA examination report. In May 2010, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim for entitlement to service connection for obstructive sleep apnea was received until August 2014, when VA received a petition to reopen such claim. Therefore, the May 2010 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from May 2010 rating decision. See also Lang v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. Although the Veteran's service personnel records were associated with the record sometime after this rating decision, such records are not relevant as they are not related to a claimed in-service event, injury, or disease. See 38 C.F.R. § 3.156(c). The Veteran filed a petition to reopen his previously denied claim for entitlement to service connection for obstructive sleep apnea that was received by VA in August 2014 and was again denied in a September 2014 rating decision. Specifically, the September 2014 rating decision indicated that the evidence did not show a current diagnosis of obstructive sleep apnea. As a result, his claim was again denied. Evidence considered in the September 2014 rating decision included a September 2014 VA examination report and continuing post-service treatment records. In September 2014, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim for entitlement to service connection for obstructive sleep apnea was received until June 2015, when VA received a petition to reopen such claim. Therefore, the September 2014 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from September 2014 rating decision. See also Lang v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra The Veteran filed a petition to reopen his previously denied claim for entitlement to service connection for obstructive sleep apnea that was received by VA in June 2015 and was again denied in a December 2015 rating decision. Specifically, the December 2015 rating decision indicated that the Veteran's petition to reopen the previously denied claim for entitlement to service connection for obstructive sleep apnea was considered reopen; however, the evidence did not show that obstructive sleep apnea was incurred in or aggravated by service. As a result, his claim was again denied. Evidence considered in the December 2015 rating decision included lay statements submitted by W.Y. and J.F. from June 2015, continuing post-service treatment records, a VA examination report from August 2015 and a VA examination report from November 2015. In December 2015, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim for entitlement to service connection for obstructive sleep apnea was received until February 2016, when VA received a petition to reopen such claim. Therefore, the December 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from December 2015 rating decision. See also Lang v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra The Veteran filed the instant petition to reopen his claim for entitlement to service connection for obstructive sleep apnea, which was received by VA in February 2016. The pertinent evidence that has been received since the December 2015 rating decision includes continuing post-service treatment records, a lay statement submitted by the Veteran's spouse, and September 2020 Board hearing testimony. Specifically, the Veteran and his spouse testified at the September 2020 Board hearing that the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected PTSD. Presuming the credibility of the post-service treatment records and the sworn testimony of the Veteran and his spouse before the Board, the Board finds that the evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for obstructive sleep apnea. The claim for service connection for obstructive sleep apnea was previously denied because there was no evidence showing that the Veteran's obstructive sleep apnea was etiologically related to his service. However, the Board hearing testimony and lay statement submitted indicate the Veteran's obstructive sleep apnea may be secondary to his service-connected PTSD. Accordingly, reopening of the claim of entitlement to service connection for obstructive sleep apnea is warranted. REASONS FOR REMAND Service Connection Obstructive Sleep Apnea The Veteran asserts that he has obstructive sleep apnea as a result of his active service. Specifically, the Veteran and his spouse testified at the September 2020 Board hearing that his obstructive sleep apnea symptoms had its onset during active service; in the alternative, the Veteran asserts that his obstructive sleep apnea was caused or aggravated by her service-connected PTSD. See Board hearing transcript, September 24, 2020. The Board notes that the Veteran was afforded a VA examination for his obstructive sleep apnea in December 2015. At that time, the examiner opined the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of his service-connected pneumothorax because there was no plausible mechanism that remote history of pneumothorax causes obstructive sleep apnea. The Board finds the December 2015 VA examination opinion inadequate to decide the claim. In this regard, the examiner did not provide an opinion as to direct service connection, did not adequately address the statements and contentions associated with the claims file that his obstructive sleep apnea symptoms had its onset during active service and have continued since and did not address the theory of contention that his obstructive sleep apnea was caused or aggravated by his service-connected PTSD. Accordingly, the Board concludes that the Veteran should be afforded a new VA examination to determine the nature and etiology of his obstructive sleep apnea. Where VA provides a veteran with an examination in a service connection claim, the examination and medical opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed obstructive sleep apnea. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is related to an in-service injury, event, or disease? (B) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was caused or aggravated by his service connected PTSD? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.