Citation Nr: 24008317 Decision Date: 02/20/24 Archive Date: 02/20/24 DOCKET NO. 19-21 323 DATE: February 20, 2024 ORDER The appeal to reopen the claim for service connection for sleep apnea is granted. To this extent only, the appeal is allowed. FINDING OF FACT 1. The AOJ denied service connection for sleep apnea in June 2016 and again in September 2017. It notified the Veteran of its decision and of his right to appeal it within 1 year thereof in June 2016 and September 2017. The Veteran did not appeal the June 2016 decision, nor was new and material evidence received within 1 year of the notification of that decision at the time. 2. New and material evidence was received within 1 year of the September 2017 decision notification. 3. The June 2016 rating decision is final, but the September 2017 rating decision based on the June 2017 claim is not, since new and material evidence was received within 1 year thereafter, in November 2017, when a medical record indicating that the Veteran had sleep apnea, a material fact not previously evident, was received. ? CONCLUSIONS OF LAW 1. The June 2016 AOJ decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim for service connection for sleep apnea filed in June 2017 based on new and material evidence are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to September 2005, achieving the rank of Master Sergeant E7. We thank him for his exceptional service, including as described in a November 1992 rating by his supervisor. ("Absolutely the best professional information manager ever assigned to this office.") We have carefully considered the matter and have determined that he is appealing from a September 2017 rating decision based on a claim filed in June 2017, after a prior final denial of service connection for sleep apnea in a June 2016 Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ) rating decision. Prior unappealed AOJ rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. Applicable 38 C.F.R. § 3.156 provides that 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 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this 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. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The AOJ denied service connection for sleep apnea in June 2016 and notified the Veteran of its decision and of his right to appeal it within 1 year in June 2016. No appeal was filed, and no additional evidence was received within 1 year of the June 2016 notice. Accordingly, that AOJ decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of that decision, competent (in this case, medical) evidence of sleep apnea was not of record, and it was necessary. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009). Since that decision, the Veteran applied for service connection for sleep apnea again in June 2017. Since that time, competent evidence of sleep apnea was received in November 2017, within 1 year of the October 2017 notification to the Veteran of the September 2017 rating decision denying service connection for it. This report is considered to be new and material evidence, as it is the type of evidence which was necessary but lacking at the time of the prior rating decision in June 2016. Accordingly, the claim is reopened based on the claim filed in June 2017. The Board finds that the June 2016 rating decision is final and notes that the AOJ determined that new and material evidence had not been received since it became final. However, as we find that new and material evidence has been received since the June 2016 rating decision, we conclude that the claim filed in June 2017 is reopened. Before reaching the merits of the claim, however, we are remanding it for further development. REMANDED The appeal for service connection for sleep apnea, on its merits, is remanded. REASONS FOR REMAND The Veteran asserted in January 2024 that he was assigned to the Air Force Technical Applications Center located on Patrick Air Force Base, Florida in or about May 1985, and that while he was stationed there in about 1990-1991, a reconstruction project began in the building that required demolition of the walls that were filled with asbestos. An asbestos removal team came into the building. He worked there for about 4 years after the asbestos was removed. He was not provided with any type of protective gear. Due to the security of their work environment, there were no windows for ventilation. Service personnel records showing that the Veteran served at the Air Force Technical Applications Center at Patrick Air Force Base in the 1990s were received later in January 2024. On August 10, 2022, the President signed into law the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). In pertinent part, the PACT Act adds new examination requirements where a toxic exposure risk activity (TERA) is implicated. A TERA is any activity that requires a corresponding entry in an exposure tracking record system as defined in 38 U.S.C. § 1119(c) or any activity which VA's Secretary determines qualifies for the purposes of the PACT Act. 38 U.S.C. § 1168. Pursuant to the PACT Act, VA is now required to provide a disability examination and/or obtain a medical opinion when a Veteran submits a claim for compensation and has: (1) evidence of a disability, and (2) participation in a TERA, but the evidence is not sufficient to establish service connection for the disability. 38 U.S.C. § 1168(a). The Veteran has a current diagnosis of sleep apnea and has provided prima facie and credible evidence of participation in a TERA. The matter is REMANDED for the following action: 1. The AOJ should further develop for TERA data, as appropriate, including: in light of the Veteran's January 2024 report of exposure to asbestos at Patrick Air Force Base's Air Force Technical Applications Center in the early 1990s, due to his building, the Air Force Technical Applications Center, undergoing remediation for asbestos. 2. Thereafter, schedule the Veteran for a Toxic Exposure Risk Activity (TERA) examination by an appropriate clinician to determine the nature and etiology of the Veteran's current obstructive sleep apnea, diagnosed on private sleep study in May 2017. The claims file must be reviewed by the examiner. Following a review of the entire record, the examiner is asked to address the following: 3. Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's obstructive sleep apnea had its onset in or is otherwise etiologically related to his service, to include his claimed exposure to asbestos while serving at Patrick Air Force Base, Florida in the 1990's. For the purpose of the medical opinion, the examiner shall assume that the Veteran was exposed to asbestos as claimed. In providing such opinion, the examiner shall consider (a) the Veteran's total potential exposure through all applicable military deployments; and (b) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. The Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is reminded that an absence of in-service complaints or treatment should not form the sole basis of a negative opinion. A complete rationale for all opinions must be provided. Ardie A. Bland Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.