Citation Nr: 18154169
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-41 171
DATE:	November 29, 2018
ORDER
New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for sleep apnea.
REMANDED
Entitlement to service connection for sleep apnea is remanded.
FINDING OF FACT
1. A December 2010 rating decision denied the Veteran’s claim of entitlement to service connection for sleep apnea. The Veteran was notified of his appellate rights, but did not submit new and material evidence within one year nor complete an appeal of the rating decision.
2. Evidence received since the December 2010 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for sleep apnea and raises a reasonable possibility of substantiating the Veteran’s claim of service connection.
CONCLUSION OF LAW
1.  The December 2010 rating decision which denied the Veteran’s claim of entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105 (c) (2012). 
2. Evidence received since the December 2010 rating decision in connection with the Veteran’s claim of entitlement to service connection for sleep apnea is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the US Navy from April 1976 to May 1993.  The Veteran was a member in the US Navy Reserves from May 1993 to April 2000, at which time he retired from service.
A hearing was conducted by video conference by the undersigned Veterans Law Judge in May 2017; a transcript of which is of record.  
New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for sleep apnea.
The Veteran contends that he presented new and material evidence sufficient to support a finding that the claim for service connection for sleep apnea be reopened.
A December 2010 rating decision denied the Veteran’s claim of entitlement to service connection for sleep apnea because the Veteran did not offer evidence of a current diagnosis or evidence that the condition occurred during or is related to service. The Veteran was notified of his appellate rights, but did not complete an appeal of this decision or submit new and material evidence within one year of the rating decision; therefore, the December 2010 rating decision is final. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).
A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. VA must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994).
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, 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 (a).
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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. Shade, 24 Vet. App. at 118.
Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, 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).
The evidence received since the December 2010 rating decision includes a current diagnosis of sleep apnea from the Veteran’s private treatment records from Texas Sleep Medicine dated July 2010.  Further, the Veteran submitted lay statements from family members dated July 2015 detailing their observance of the Veteran’s use of a C-PAP machine. Specifically, the Veteran’s brother reports that the Veteran actively used the C-PAP machine in 1990 while on a visit to Michigan.  The Veteran’s mother also reports her observance of the Veteran’s use of a C-PAP machine in 1991 during her visit to California.  Also, the Veteran’s wife offered testimony at the May 2017 hearing and a written statement of May 2015 describing the Veteran’s sleep disturbances within 12 months of leaving active duty service.  Additionally, the Veteran has submitted statements from his fellow sailors dated July 2015, which describe the Veteran’s use of the C-PAP machine while the Veteran was serving on active duty for training during the Veteran’s duty in the reserves.  This evidence is clearly “new” because it postdates the December 2010 decision, and is also “material” because it represents continuous symptoms for several years; it relates to previously unestablished elements of service connection; and raises a reasonable possibility of substantiating the underlying issue.  Therefore, this evidence constitutes new and material evidence. See Shade, 24 Vet. App. at 118. Consequently, the Veteran’s claim of entitlement to service connection for sleep apnea is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS FOR REMAND
Entitlement to service connection for sleep apnea is remanded.
With respect to the Veteran’s claim of service connection for sleep apnea, the Veteran has provided evidence of a current diagnosis of sleep apnea from private treatment records dated July 2010 and he has provided lay statements from on or about July 2015 from family members and friends confirming the Veteran’s use of a C-PAP machine for sleeping for many years.  The Veteran has not been afforded a VA examination to determine if his sleep apnea was incurred during or as a result of service.  Therefore, remand for a VA examination is necessary prior to adjudication.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).
Accordingly, the case is REMANDED for the following action:
1. Obtain any outstanding relevant treatment records. Request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to his claim for service connection. Any records of treatment since separation from service should be identified by the Veteran, and should be obtained to the extent possible. Document all attempts to obtain such records. 
2. The Veteran is hereby notified that he may submit lay statements from himself, as well as from individuals such as friends and/or family members, who have first-hand knowledge of the nature and etiology of any sleep apnea disorder. He should be provided an appropriate amount of time to submit this lay evidence.
3. Schedule the Veteran for an appropriate VA examination with an examiner qualified to provide an opinion regarding the Veteran’s claim. The claims folder should be made available to and reviewed by the examiner. 
The examiner must perform any necessary testing, including a sleep study if warranted, and provide all relevant diagnoses. 
If the Veteran has a diagnosis of sleep apnea, the examiner must opine whether it is as least as likely as not (50 percent probability or higher) that his sleep apnea began during or is otherwise related to service. 
It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
A comprehensive medical rationale is requested in response to all opinions and findings entered.
 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Scanlan, Associate Counsel 

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