Citation Nr: 18131262
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-11 379
DATE:	August 31, 2018
ORDER
As new and material evidence has been submitted to reopen the claim for service connection for a sleep disorder, including sleep apnea, has been received, the application to reopen is granted.
REMANDED
1.  Entitlement to service connection for a sleep disorder, including apnea, is remanded.
2. Entitlement to a rating of 60 percent for pseudofolliculitis barbae and tinea versicolor, to include the propriety of the reduction from 60 percent to 10 percent rating effective August 1, 2011 is remanded.
FINDINGS OF FACT
1. An unappealed June 2012 rating decision denied service connection for obstructive sleep apnea.
2. Evidence submitted subsequent to the June 2012 rating decision bears directly and substantially upon the specific matters under consideration, is not cumulative nor redundant, and in connection with evidence previously assembled, raises a reasonable possibility of substantiating the claims of entitlement to service connection for a sleep disorder, including sleep apnea. 
CONCLUSION OF LAW
1.  The June 2012 RO decision denying entitlement to service connection for a sleep disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2018).
2. New and material evidence has been received to reopen the claim for service connection for a sleep disorder.  38 U.S.C. § 5108; 38 C.F.R. § 3.156, 4.85.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Marine Corps from April 2002 to March 2010.  The sleep apnea matter comes before the Board from an July 2014 rating decision.  The pseudofolliculitis barbae matter comes before the Board from a May 2011 rating decision reducing the Veteran’s rating from 60 percent to 10 percent.  The reduction was effective in August 2011.  
The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in June 2018.  The Veteran provided testimony on sleep apnea and pseudofolliculitis barbae at this hearing; a transcript is in the record.
Whether new and material evidence has been submitted to reopen the claim for service connection for a sleep disorder
A.	Finality
A June 2012 rating decision denied service connection for the Veteran’s claimed sleep disorder. The RO determined that the evidence failed to establish an etiological link between his diagnosed obstructive sleep apnea and his active service, to include reports of in-service snoring.  The Veteran was notified of the decision, but did not appeal.  There was also no new and material evidence within a year of the decision.  Accordingly, the decision became final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103, 20.204. 
B.	New and Material Evidence
VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, is related 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 
The Court has held that evidence is presumed credible for the purpose of reopening a claim.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The presumption is rebuttable when the evidentiary assertion is inherently incredible.  See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion).  The United States Court of Appeals for the Federal Circuit (Court) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence has not been previously presented to the Board.               Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 
In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis.  Bostain v. West, 11 Vet. App. 124, 126-27 (1998).  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, 117 (2010).  When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade, 24 Vet App. 110 (2010).
The Veteran filed a new claim for service connection for a sleep disorder in July 2014.  The evidence received since the June 2012 rating decision includes the Veteran’s testimony at the June 2018 Board hearing at which the Veteran maintained that his sleep apnea symptoms had their onset in service.  He gave an in-service history of waking up in the middle of the night choking as well as feeling unrested during the day in addition to his previously described problems of loud snoring. He added that he sought out treatment for his sleep problems shortly after service discharge. This evidence was not of record at the time of the prior decision, and relates to unestablished facts necessary to substantiate the claim. 
Therefore, the new evidence submitted subsequent to the June 2012 rating decision bears directly and substantially upon a specific matter under consideration, including in-service treatment and diagnosis, and is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for sleep apnea.  
REASONS FOR REMAND
1. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded.
At a June 2012 VA examination, the examiner found that the Veteran’s sleep apnea was less likely than not related to his service.  The examiner explained that the Veteran’s sleep studies in-service did not diagnose sleep apnea, and that the Veteran had gained a significant amount of weight between service and the 2012 study which diagnosed sleep apnea.  The examiner opined that the diagnosis of sleep apnea in June 2012 was more likely due to the Veteran’s weight gain, which is the main risk factor for sleep apnea. 
The June 2012 examiner noted that the Veteran gained 24 lbs. between 2009 and 2012.  The clinical significance of the documented in-service weight gain was not discussed.  Notably, a December 2008 notation indicates that the Veteran gained 10 lbs. in two months secondary to decreased activity after knee surgery in October 2008.  Between January 2009 and discharge in March 2010 the Veteran appears to have gained at least 10 lbs.  There are numerous notations that the Veteran’s ankle and knee pain increased due to weight gain.  The June 2012 VA examiner did not account for the weight gain that occurred in-service nor did the examiner discuss the weight gain as a secondary issue to the Veteran’s service connected knee and ankle injuries.
The Board notes that VA has held that obesity is not a disability for service connection or secondary service connection compensation purposes, but has held that obesity may act as an “intermediate step” between a service-connected disability and a current disability for which secondary service connection may be established. See VAOPGCPREC 1-2017 (Jan. 6, 2017). It was noted that, under 38 C.F.R. § 3.310 (a), a disability which is proximately due to or the result of a service-connected disease or injury is service connected and that “proximate cause” had been defined by Black’s Law Dictionary, 213 (7th ed. 1999), as a “cause that directly produces an event and without which the event would not have occurred.” As such, VA adjudicators must resolve: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability.
Generally, if VA has provided an examination, VA must ensure that exam is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007)  Another VA examination is warranted to determine the etiology of the Veteran’s sleep apnea.  

2.  Entitlement to a rating of 60 percent for pseudofolliculitis barbae and tinea versicolor to include the propriety of reduction from 60 percent to 10 percent rating effective August 1, 2011.
By correspondence dated October 2010, the Veteran was notified of the proposed reduction and given an opportunity to submit additional evidence or request a hearing.  The enclosed rating decision described the proposed reduction and the rationale.  A May 2011 decision effectuated the reduction from 60 percent to 10 percent for pseudofolliculitis barbae and tinea versicolor, effective from August 1, 2011. This reduction resulted in a reduction of compensation payments. His combined rating was reduced from 90 percent to 70 percent, and his monthly payment was decreased.  
The Veteran, through his representative (Disabled American Veterans (DAV),  filed a Notice of Disagreement in March 2012 with regard to the May 2011 RO decision.  Following the issuance of a Statement of the Case (SOC) in April 2012, which was copied to the DAV, DAV filed a substantive appeal (VA Form 9) in May 2012 on the Veteran’s behalf. A handwritten note on that form indicated “VAF 9 not accepted as there is no 21-22 for DAV” and that DAV was notified by phone.
There is no Report of Contact documenting this phone call. There is also no evidence that the Veteran was provided notice that his submitted appeal had been rejected. Further, and most problematic, the record includes an VA Form 21-22 (Appointment of Veterans Service Organization As Claimant’s Representative) that identifies DAV as the Veteran’s representative, that was signed by the Veteran, and that was received by the RO in August 2010. In short, the Veteran filed a timely appeal to the May 2011 decision.  The matter has remained pending since that time. In that regard, since the RO issued the SOC in April 2012, additional relevant evidence has been added to the claim file, including medical records.  The matter is remanded for a supplemental statement of the case.  
It is noted that the Veteran filed a claim for an increased rating for pseudofolliculitis barbae and tinea versicolor in June 2018.  The matter of whether the initial reduction was proper is separate from the increased rating claim. 
The matter is REMANDED for the following action:
1. Obtain all the Veteran’s outstanding VA treatment records.
2. Schedule the Veteran for a VA examination by an appropriate VA medical professional to determine the current nature and etiology of any sleep disability.  The claims file should be made available to the examiner. The following should be addressed: 
a. Identify/diagnose any sleep disability that presently exists or that has existed during the appeal period. 
b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current sleep disorder (sleep apnea):
i. had its onset in service, or
ii. is etiologically related to his active service, or
iii. was caused by any his multiple service-connected disabilities, or
iv. was aggravated by his multiple service-connected orthopedic disabilities.
The examiner must also address the question of whether a service-connected disability or disabilities, individually or in concert, caused the Veteran’s obesity and was/were a substantial cause of his sleep disorder (sleep apnea).  And, if so, the examiner should indicate whether the Veteran’s sleep apnea disability would not have occurred but for the obesity.
In rendering the opinion, the examiner should consider the Veteran’s weight gain both during and after service, his diagnosis of sleep apnea approximately two years after his discharge, the STR notations of sleep apnea by history, and his contention his sleep apnea symptoms began during service.
The examination report must include a complete rationale for all opinions expressed.
2. Issue a supplemental statement of the case (SSOC) for the pseudofolliculitis barbae and tinea versicolor rating reduction addressing all evidence added to the file since 2012.
 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Rekowski, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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