Citation Nr: 22017191 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 20-07 931 DATE: March 24, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for residuals of a stroke is reopened. REMANDED Entitlement to service connection for residuals of a stroke is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea as secondary to residuals of a stroke is remanded. Entitlement to service connection for an acquired psychiatric disorder as secondary to residuals of a stroke is remanded. FINDINGS OF FACT 1. In an unappealed April 2018 rating decision, the RO denied the claim of entitlement to service connection for residuals of a stroke. 2. The additional evidence received since that last final decision was not previously submitted to agency decisionmakers, is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for residuals of a stroke. CONCLUSIONS OF LAW 1. The RO's April 2018 rating decision, which denied the Veteran's claim of entitlement to service connection for residuals of a stroke, is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. 2. New and material evidence has been received since the April 2018 rating decision to reopen the service connection claim for residuals of a stroke. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from March 1986 to September 1986 and on active duty in the U.S. Army Marine Corps from February 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a virtual teleconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. The Board notes that although the RO addressed the Veteran's claim for service connection for stroke residuals on the merits, because that claim was the subject of a prior, final denial, as discussed below, the Board must address whether reopening is warranted before it may address the claim on the merits. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). New and Material Evidence 1. New and material evidence having been received, the claim of entitlement to service connection for stroke residuals is reopened. Service connection for stroke residuals was denied on the merits in an April 2018 rating decision. A letter dated the following month notified the Veteran of the decision and of his appellate rights, in accordance with 38 C.F.R. § 19.25. See VA Notification Letter (dated May 1, 2018). The Veteran did not appeal. See 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.200, 20.201, 20.202, 20.203 (setting forth requirements and timeframe for initiating and perfecting an appeal under VA's legacy system). Moreover, new and material evidence was not received within one year of notification of the April 2018 rating decision. See 38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (providing that new and material evidence must have been associated with the file since the last prior final denial of the claim, whether the denial was on the merits or on procedural grounds). Accordingly, this rating decision is final, and new and material evidence is therefore required to reopen the claim. See 38 U.S.C. § 7105 ; 38 C.F.R. §§ 3.156 (a); 20.1103. New and material evidence has been received concerning the issue of entitlement to service connection for stroke residuals in the form of private medical opinion evidence linking the Veteran's stroke residuals to his active service, as well as the Veteran's sworn testimony at his December 2020 Board hearing concerning the nature, onset, and potential causes of his claimed stroke residuals. See May 2019 Opinion from C.N.B., M.D. (receive by VA on May 17, 2019); December 2020 Board Hearing Transcript; January 2021 Opinion from C.N.B., M.D. (received by VA on January 26, 2021). See also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (reflecting that new evidence is sufficient reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of the disability at issue). This evidence was not of record at the time of the April 2018 rating decision. Additionally, this evidence relates to an unestablished fact necessary to reopen the claim and raises a reasonable possibility of establishing service connection. See 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-121 (2010) (noting that the new-and-material-evidence standard does not require proof of all the elements for a given claim on appeal, just presentation of reasonable possibility of substantiating an element that was basis for prior denial, which is a "low threshold"). Therefore, reopening is warranted. REASONS FOR REMAND Although the Board regrets the additional delay, further development is necessary prior to adjudication of the reopened claim for service connection for stroke residuals, as well as the claims for service connection for sleep apnea, hypertension, and an acquired psychiatric disorder. 1. Entitlement to service connection for residuals of a stroke is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for sleep apnea as secondary to residuals of a stroke, is remanded. 4. Entitlement to service connection for an acquired psychiatric disorder as secondary to residuals of a stroke, is remanded. The record indicates that the Veteran is in receipt of Social Security Administration (SSA) benefits, the award of which is based, at least in part, on his cardiovascular pathology. See, e.g., December 2020 Board Hearing Transcript (testifying that he was awarded social security disability benefits based on his stroke residuals and asserting that his sleep apnea and acquired psychiatric disorder are related to his cardiovascular pathology). However, a review of the claims file does not show that VA attempted to obtain any of the Veteran's SSA records as part of his claims. As the record reflects SSA records that may be outstanding and may be pertinent to the Veteran's claims, the Board must remand the claims in order to obtain those records. See 38 C.F.R. § 3.159(c)(2) and (3); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (as long as a reasonable possibility exists that the SSA records are relevant to a Veteran's claim, VA is required to assist a Veteran in obtaining the identified records). See, too, Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue). Additionally, as the case is being remanded, the Veteran should be given another opportunity to identify any records of private medical treatment that he would like to submit or have VA obtain. The matters are REMANDED for the following action: 1. Send a letter to the Veteran requesting him to identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claims. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Make arrangements to obtain any outstanding VA treatment records and associate them with the claims file. 3. Make arrangements to obtain the Veteran's SSA records, including all disability determinations, application materials, and associated medical records, to the extent available. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's claims on appeal. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.