Citation Nr: 23024167 Decision Date: 04/26/23 Archive Date: 04/26/23 DOCKET NO. 19-13 859 DATE: April 26, 2023 ORDER New and material evidence having been received, the claim for service connection for a thyroid condition is reopened, and to that extent only, the appeal is granted. REMANDED Entitlement to service connection for a thyroid condition is remanded. Entitlement to service connection for sleep apnea, as secondary to service-connected allergic rhinitis and asthma, is remanded. FINDINGS OF FACT 1. A July 2016 rating decision denied the Veteran's claim for service connection for a thyroid condition; the Veteran did not appeal the decision or submit new and material evidence within the appeal period, and the decision is final. 2. Evidence added to the record since the July 2016 rating decision, when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim or raises a reasonable possibility of substantiating the claim for service connection for thyroid condition. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for a thyroid condition, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1985 to May 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the May 2017 rating decision that is the subject of this appeal characterized the claim for service connection for sleep apnea as a petition to reopen the claim. However, the record indicates that the Veteran's June 2017 request to reconsider the claim was received within one year of the previous July 2016 rating decision and the evidence submitted with the June 2017 request for reconsideration is new and material evidence. As such, the July 2016 rating decision did not become final, and the current claim for service connection for sleep apnea relates back to the Veteran's prior claim. See 38 C.F.R. § 3.156(b). 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a thyroid condition Generally, if a claim for entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156 (a). New and material evidence can be construed as that which contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The threshold to reopen the claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, a claim will be reconsidered 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. 38 C.F.R. § 3.156(c). The Veteran's initial claim for service connection for a thyroid condition was denied in a July 2016 rating decision on the basis that the diagnosed condition was not incurred in or caused by service. The Veteran was notified of the decision in July 2016. The Veteran did not perfect an appeal or submit new and material evidence during the appeal period, and the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In February 2017, the Veteran submitted VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), in which he requested reconsideration of the claim for service connection for a thyroid condition. The May 2017 rating decision that is the subject of this appeal declined to reopen the claim finding that new and material evidence had not been submitted, and the Veteran timely appealed the decision. A March 2019 statement of the case also declined to reopen the claim, and the Veteran submitted a timely substantive appeal. Regardless of the RO's actions, the Board has an obligation to make an independent determination of its jurisdiction. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The Board notes that the Veteran's February 2017 request to reconsider the claim was received within one year of the previous July 2016 rating decision. However, the July 2016 rating decision became final because the evidence submitted by the Veteran with his February 2017 request to reopen was not new and material evidence. Specifically, the private treatment records submitted by the Veteran indicate current treatment for the claimed condition but do not relate to the reason for the previous denial or raise a reasonable possibility of substantiating the claim; namely, whether the thyroid condition was incurred in or caused by service. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 19.52, 20.1103. Thus, the February 2017 request to reconsider is considered a new claim for service connection for a thyroid condition. Turning now to the Board's determination of whether new and material evidence has been received to reopen the claim, the July 2016 rating decision denied the claim for service connection for a thyroid condition because the evidence did not show the condition was incurred in or caused by service. Evidence in the record at that time included the Veteran's statements asserting that his thyroid condition is related to exposure to environmental contaminations while stationed at Pease Force Base; a 1993 U.S. Environmental Protection Agency (EPA) Record of Decision describing remedial actions related to contaminated soil at Pease Air Force Base; and internet articles regarding contaminants. It also included private treatment records documenting a medical history of and current treatment for a thyroid condition. Evidence added to the record since the July 2016 rating decision includes additional statements by the Veteran and a statement from the Veteran's mother; VA and private treatment records reflecting the Veteran's medical history and current treatment of a thyroid condition; and a March 2018 letter from a private physician opining that the Veteran's Hashimoto's disease and/or thyroid cancer could be related to exposure to environmental contaminants. The evidence also includes medical literature discussing toxic chemicals and cancer and/or thyroid disorders and federal efforts to remediate contaminants, including at Pease Air Force Base. This evidence is presumed credible solely for purposes of new and material evidence analysis. See Justus, supra. Some of this evidence is new. It is also material as it contributes to a more complete picture surrounding the origins of the claimed condition. Accordingly, the Board finds that new and material evidence has been received, and the claim for a thyroid condition is reopened. See 38 U.S.C. § 5108, 38 C.F.R. § 3.156; Shade, 24 Vet. App. 110, at 117-120. The underlying merits of the claim are addressed in the remand portion of this decision. REASONS FOR REMAND 1. Entitlement to service connection for a thyroid condition 2. Entitlement to service connection for sleep apnea, as secondary to service-connected allergic rhinitis and asthma The Board finds that further development is needed prior to adjudicating the Veteran's claims. Regarding the claimed thyroid condition, the Veteran asserts that his current thyroid condition, diagnosed as thyroid cancer, thyroiditis and hypothyroidism, is due to exposure to chemical contaminants while stationed at Pease Air Force Base, including perfluorooctanoic sulfonate (PFOS), perfluorooctanoic acid (PFOA) and trichloroethylene (TCE) contained in ground water, and Aqueous Film Forming Form (AFFF) used in fire-suppressing activities. The Veteran submitted articles and medical literature addressing chemical contaminants and thyroid disease. Service personnel records show the Veteran was stationed at Pease Air Force Base from December 1985 and October 1986. The OAJ has not taken steps to verify the alleged chemical exposure. Thus, this should be accomplished on remand. Further, a VA examination and opinion addressing the claimed thyroid condition is not of record. While the record contains a March 2018 opinion from the Veteran's physician opining that it is possible that the Veteran's thyroid cancer and Hashimoto's thyroiditis could be related to in-service chemical exposure, the opinion is speculative and thus inadequate for adjudicating the claim. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative). Thus, a VA opinion is warranted. Regarding the claimed sleep apnea, the Veteran contends that his sleep apnea began during service and has been continuous since service; or, alternatively, was caused or aggravated by his service-connected allergic rhinitis and asthma. The medical evidence shows the Veteran is diagnosed with obstructive sleep apnea. A review of the Veteran's service treatment records show the Veteran complained of sleep and breathing problems during service, to include awakening from sleep, being unable to sleep, wheezing, headaches, coughing, shortness of breath and difficulty breathing. See, i.e., December 1986, January 1987, February 1987, March 1987, April 1987 and October 1988 service treatment records. The record does not contain an opinion addressing whether the Veteran's sleep apnea is directly related to service and the in-service complaints and treatment for sleep and breathing problems. Further, as to secondary service connection, a November 2012 private treatment record shows complaints of difficulty sleeping at night secondary to nasal obstruction. While an April 2017 VA examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or caused by the service-connected allergic rhinitis, the opinion did not address whether the sleep apnea was proximately caused by the Veteran's service-connected asthma, or whether the sleep apnea was aggravated (worsened) by the service-connected allergic rhinitis and/or asthma. While the record contains a November 2016 letter from the Veteran's physician opining that the Veteran's allergic rhinitis probably causes some nasal congestion, which likely contributes to airway collapse and sleep apnea, the opinion is speculative and thus inadequate for adjudicating the claim. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a VA opinion addressing direct and secondary service connection is needed. Updated treatment records should also be requested. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for the conditions on appeal. After securing any necessary releases, request any relevant records identified that are not duplicates of those associated with the claims file. 2. Obtain updated VA treatment records since January 2019. If any requested records are unavailable, the Veteran should be notified of such. 3. Attempt to verify through official sources the Veteran's alleged exposure to chemical contaminants while stationed at Pease Air Force Base from December 1985 to October 1986, to include exposure to PFOS, PFOA and TCE in ground water and AFFF used in fire-suppressing activities. All requests and responses should be documented in the claims file. If additional information is needed from the Veteran to permit verification, the Veteran should be asked to provide the information. 4. After records development is completed, schedule the Veteran for a VA examination to determine the nature of the claimed thyroid disorder and to obtain an opinion addressing whether the condition is related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. After reviewing the claims file and examining the Veteran, the examiner should opine whether it is at least as likely as not (an approximate balance) that any currently diagnosed thyroid condition arose during service or is otherwise related to service? Please explain why or why not. In rendering the opinion, the examiner should address whether the thyroid condition is directly related to alleged exposure to chemical contaminants such as PFOS, PFOA, TCE and AFFF during service; and address articles and medical literature regarding chemical contaminants and thyroid disease submitted by the Veteran (see appellant correspondence and article submissions, received February 2017, March 2018 and April 2018). The examiner must provide a complete rationale for the opinions and conclusions expressed. 5. Obtain a VA opinion addressing the claimed sleep apnea. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. After reviewing the claims file, the examiner should respond to the following: (a.) Is it at least as likely as not (an approximate balance) that the currently diagnosed obstructive sleep apnea arose during service or is otherwise related to service? Please explain why or why not. In rendering the opinion, the examiner should address complaints and treatment related to sleep and breathing issues during service (see, i.e., December 1986, January 1987, February 1987, March 1987, April 1987 and October 1988 service treatment records); and whether the current sleep apnea is a continuation or maturation of in-service symptoms. (b.) Is it at least as likely as not (an approximate balance) that the currently diagnosed obstructive sleep apnea was proximately caused by the service-connected allergic rhinitis and/or service-connected asthma? Please explain why or why not. The examiner should address the service-connected allergic rhinitis and asthma separately. In rendering the opinion, the examiner should address the November 2012 private treatment record reflecting complaints of difficulty sleeping at night secondary to nasal obstruction; and the Veteran's contentions that medical research reflects a positive correlation between sleep apnea and allergic rhinitis and/or asthma (see appellant correspondence and medical article submissions, received June 2017, April 2018 and May 2019). (c.) Is it at least as likely as not (an approximate balance) that the currently diagnosed obstructive sleep apnea was aggravated (worsened beyond natural progression) by the service-connected allergic rhinitis and/or asthma? Please explain why or why not. The examiner should address the service-connected allergic rhinitis and asthma separately. In rendering the opinion, the examiner should address the November 2012 private treatment record reflecting complaints of difficulty sleeping at night secondary to nasal obstruction; and the Veteran's contention that medical research reflects a positive correlation between sleep apnea and asthma and/or allergic rhinitis (see appellant correspondence and medical article submissions, received June 2017, April 2018 and May 2019). If the examiner finds that the obstructive sleep apnea was aggravated by the service-connected allergic rhinitis and/or asthma, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the obstructive sleep apnea. The examiner must provide a complete rationale for the opinions and conclusions expressed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.