Citation Nr: 1301981 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 08-20 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for sleep apnea, to include as due to service-connected hypertension. 2. Entitlement to a disability evaluation in excess of 30 percent for headaches. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from September 1983 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran's petition to reopen a claim for service connection for sleep apnea was initially phrased as two separate issues: a petition to reopen a claim for service connection for sleep apnea on a direct basis, and entitlement to service connection for sleep apnea on a secondary basis. A claim for service connection on a secondary basis is not a new claim simply because a new theory of entitlement is asserted. Robinson v. Peake, 21 Vet. App. 545 (2008). Separate theories in support of a claim for benefits for a particular disability do not equate to separate claims for benefits for that disability. If the theories all pertain to the same benefit for the same disability, they constitute the same claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006). Therefore, the issue has been phrased as listed above. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in September 2012 before the undersigned. A copy of the transcript has been associated with the claims file. In March 2012 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. FINDINGS OF FACT 1. Service connection for sleep apnea was initially denied by rating decision dated in September 2000 and that denial was confirmed and continued in a December 2000 rating decision. 2. In a January 2006 decision, the Board denied service connection for a sleep disability to include as due to an undiagnosed illness. 3. Evidence associated with the claims file since January 2006 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for service connection for sleep apnea. 4. The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has sleep apnea that began during active service or is related to an incident of service. 5. In September 2012, prior to the promulgation of a decision on the issue of entitlement to a disability evaluation in excess of 30 percent for headaches, the Veteran withdrew his appeal of that issue. CONCLUSIONS OF LAW 1. Evidence received since the January 2006 Board decision that denied service connection for a sleep disability, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The Veteran's sleep apnea was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 3. The criteria for withdrawal of the Veteran's appealed claim for an increased evaluation for headaches have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence In September 2000, the RO denied the Veteran's claim for service connection for sleep apnea on the basis that it was not due to an undiagnosed illness and he did not have symptoms in service. That decision was confirmed and continued in a December 2000 rating decision. The Veteran submitted a timely Notice of Disagreement (NOD) and the RO issued a Statement of the Case in July 2001. He filed a timely Substantive Appeal in July 2001. In a January 2006 decision, the Board denied his claim. When a rating decision issued by the RO is affirmed by the Board, that determination is considered final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1104 (2012). The Board notes further, that the Veteran did not appeal the Board's decision to the United States Court of Appeals for Veterans Claims (Court). See 38 U.S.C.A. § 7104 (West 2002). That decision, too is final. Under 38 U.S.C.A. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C.A. § 5108. 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(a). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488(1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). At the time of the September 2000 denial, the record consisted of service treatment records (STRs), VA examination reports, VA treatment records, and private treatment records. Subsequently and prior to the January 2006 Board decision, additional medical and lay evidence including hearing testimony was added to the record, and the Veteran underwent a VA examination. Since the January 2006 final Board decision, the Veteran underwent additional VA examinations, he testified before RO personnel in December 2009 and before the undersigned in September 2012, and additional VA medical evidence was added to the record. All of this evidence is new. Presuming the credibility of the Veteran's testimony, the Veteran had symptoms of sleep apnea in service. He stated that he had sleep problems and daytime somnolence while on active duty. A June 2009 letter from a VA physician's assistant stated that on the basis of his evaluation and the results of the Veteran's sleep study it was at least as likely as not that the Veteran's symptoms of obstructive sleep apnea syndrome were present while the Veteran was in service. This evidence relates to the reason his claim was previously denied. Reopening of the Veteran's the claim for service connection for sleep apnea based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase 'raises a reasonable possibility of substantiating the claim' in applicable regulation as "enabling rather than precluding reopening"). Entitlement to Service Connection for Sleep Apnea The Veteran contends that his diagnosed sleep apnea began in service. Because there is competent medical and lay evidence linking his current disability to his period of active service, the claim will be granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Because the Veteran's claim is being granted on a direct basis, the criteria for substantiating a secondary service claim under 38 C.F.R. § 3.310 will not be discussed. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran was diagnosed with sleep apnea in November 1998, satisfying the first element of a service connection claim. Hickson, 12 Vet. App. at 253. In May 2004, N. J., a friend of the Veteran, submitted a statement. N. J. stated that he served with the Veteran from July 1989 to January 1992. During this time, N. J. observed the Veteran have difficulty staying awake during class, training, and duty. He stated that during service, the Veteran "wrecked his vehicle" because he fell asleep behind the wheel. N. J. stated that the Veteran complained frequently about not getting enough sleep, sleeping poorly, not being able to breathe properly, and having shortness of breath. N. J. is competent to discuss observable symptoms such as the Veteran having problems staying awake. Layno v. Brown, 6 Vet. App. 465 (1994). There is no evidence of record that would render his statements not credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). N. J.'s statement provides probative evidence in support of the Veteran's claim and satisfies the second element of a service connection claim. Hickson, 12 Vet. App. at 253. At his September 2012 hearing, the Veteran competently and credibly testified that he overslept frequently while on active duty and he had difficulty waking up in the morning. He stated that he was never instructed to go to sick call for his problem. He was married to his first wife from 1986 to 1999, and he testified that she used to wake him at night and tell him that he had stopped breathing. He testified that his current wife was bothered by his snoring even though he used a CPAP machine to relieve his symptoms. The Veteran's testimony provides probative evidence in support of his claim. The Veteran has undergone five VA examinations, some specifically for sleep apnea. At his November 1994 Gulf War Registry examination, he reported problems sleeping and night sweats. At his April 1995 general medical examination, sleep apnea was not addressed. At his January 2005 VA stomach disorders examination, the examiner opined that the available STRs did not show symptoms of sleep apnea in service, and therefore it was not related to service or to a service-connected disability. In July 2007, a VA examiner opined that the Veteran's sleep apnea was not likely caused by his service connected hypertension. No rationale was provided. At his November 2010 respiratory disorders examination, the examiner opined that the Veteran's sleep apnea was not related to service because it was not documented in his STRs. The examiner also concluded that sleep apnea was not caused by any of the Veteran's service-connected disabilities. No rationale was provided for the opinion regarding secondary service connection. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinions of the January 2005, July 2007, and November 2010 VA examiners are inadequate. The January 2005 and November 2010 examiners based their opinions on a lack of documented symptoms in the STRs without consideration of the Veteran's assertions or N. J.'s statement that the Veteran had symptoms in service. Their rationales are inadequate. The July 2007 examiner did not provide a rationale, rendering the opinion inadequate. Id. The VA examinations do not constitute probative evidence in favor of or against the Veteran's claim. In June 2009, D. B., a physician's assistant, provided a statement in support of the Veteran's claim. He stated that the Veteran complained of a several year history of progressive dyspnea along with nocturnal snoring and wheezing as early as his November 1994 Gulf War Registry examination. It was also noted that his wife was concerned about his nighttime breathing. Because of his history, D. B. stated that the Veteran was referred to a specialist, diagnosed with sleep apnea, and prescribed a CPAP machine. D. B. concluded, "[o]n the basis of our evaluation and the results of his Sleep Study, it is at least as likely as not that his symptoms of [sleep apnea] were present while he was in service." Although D. B. did not have access to the Veteran's claims file, it is clear that he reviewed the Veteran's medical history prior to formulating his opinion. A physician's review of the claims file is not the determinative factor in assigning probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). A physician should have information regarding relevant case facts and in this case D. B. had such access. D. B.'s opinion provides probative evidence in support of the Veteran's claims. There is no evidence of any other intercurrent cause for the Veteran's current sleep apnea. The Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. It is not permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Although further medical inquiry could be undertaken towards development of the claim, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. D. B.'s June 2009 statement satisfies the nexus element of a service connection claim and therefore service connection for sleep apnea is warranted. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993); see also Hickson, 12 Vet. App. at 253. Given the granting of the benefit, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the claimant. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2010). Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Withdrawal may be made by the veteran or by his authorized representative. 38 C.F.R. § 20.204. At his September 2012 hearing before the Board, the Veteran, through his representative, withdrew his appeal as to the issue of entitlement to a disability evaluation in excess of 30 percent for headaches. The Veteran's statement indicating his intention to withdraw the appeal as to these issues, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER New and material evidence having been received, the claim for service connection for sleep apnea is reopened, and service connection for sleep apnea is granted. The appeal of the issue of entitlement to a disability evaluation in excess of 30 percent for headaches is dismissed. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs