Citation Nr: 1554095 Decision Date: 12/29/15 Archive Date: 01/07/16 DOCKET NO. 14- 21 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether new and material has been received to reopen the claim of entitlement to service connection for a sleep disorder with insomnia. 2. Entitlement to service connection for a sleep disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.S. De Leo INTRODUCTION The Veteran served on active duty from November 1988 to December 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. FINDINGS OF FACT 1. In January 2009, the Veteran filed a claim of service connection for a sleep disorder with insomnia. By a March 2009 rating decision, the RO denied the Veteran's claim, as there was no evidence that a sleep disorder with insomnia was incurred in or otherwise related to service. The Veteran did not perfect an appeal of the March 2009 rating decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received more than one year since the March 2009 rating decision is not cumulative of the evidence of record at the time of the prior final denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran's claim. 3. Sleep apnea did not have its clinical onset in service, and is not otherwise related to the Veteran's active service. CONCLUSIONS OF LAW 1. The March 2009 rating decision denying service connection for a sleep disorder with insomnia is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 2. Evidence received since the March 2009 rating decision in connection with the Veteran's claim of entitlement to service connection for a sleep disorder with insomnia is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to notify has been satisfied through pre-decisional notice letters dated in March and September 2012, which fully addressed all notice elements. The letters informed the Veteran of the evidentiary requirements for new and material evidence and for service connection, of his and VA's respective duties for obtaining evidence, and the process by which disability ratings and effective dates are assigned. Moreover, VA has complied with its duty to assist the Veteran in the development of his claim. Service treatment records (STRs) and all identified VA and private treatment records have been obtained. In March 2014, the VA obtained a medical opinion regarding the etiology of the Veteran's sleep apnea. The medical opinion was given by a physician based upon a complete review of the record and supported by a detailed rationale, and is therefore adequate for adjudication purposes. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue in appellate status. II. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2015). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Here, the RO denied entitlement to service connection for a sleep disorder with insomnia in a March 2009 rating decision. The Veteran was informed of that decision and his appellate rights in a letter dated March 5, 2009. The Veteran did not file an appeal with respect to the March 2009 decision, nor was new and material evidence received within one year of its issuance. See 38 C.F.R. § 3.156(b). Thus, the March 2009 decision is final. See 38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Board finds that new and material evidence has been submitted sufficient to reopen the Veteran's claim of entitlement to service connection sleep disorder with insomnia. Additional evidence submitted since the March 2009 determination includes a March 2011 sleep evaluation diagnosing sleep apnea and a March 2014 VA medical opinion addressing the etiology of sleep apnea. This evidence was not of record at the time of the March 2009 rating decision and is therefore new. This evidence is also material, as it pertains to elements previously lacking when the claim was last adjudicated. As such, the matter is reopened, and the Board will address the claim on the merits. Notably, since the March 2014 Statement of the Case (SOC) provided the Veteran with the laws and regulations relevant to service connection for right and left ear hearing loss and addressed the claims on the merits, the Board finds that the Veteran would not be prejudiced by its review of the merits at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993). III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). While medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (in some cases, lay evidence will be competent and credible evidence of etiology). 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 standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2014). 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 contends that his sleep apnea problems are attributable to active military service. Specifically, he asserts that his sleep apnea first manifested in service, as evidence by the August 2008 in-service diagnosis of a sleep disorder with insomnia. See February 2014 Notice of Disagreement (NOD); May 2014 VA Form 9. Regarding the first element of service connection, current disability, a January 2011 VA treatment record shows the Veteran was assessed with sleep disturbances. A sleep study was ordered and completed in March 2011, which revealed sleep apnea-hypopnea syndrome (SAHS). Thus, a current diagnosis of a sleep disorder is demonstrated as of March 2011. The second element of service connection, in-service incurrence or aggravation of a disease or injury, is also met, as the Veteran presented for a sleep study in September 2008 following complaints of snoring, gasping, and talking while asleep. An indication for the study was potential obstructive sleep apnea syndrome (OSAS). However, the impression following the study was "no significant sleep-disordered breathing with an apnea/hypopneas index (AHI) of 0.4 (up to 5 is normal)." The impressions were primary snoring, moderate periodic limb movement in sleep, and severe sleep maintenance insomnia. Regarding the final element of service connection, nexus, a VA medical opinion was obtained in March 2014 to determine the etiology of his sleep disability. The examiner, a physician, reviewed the claims file, to include STRs, the pertinent in-service sleep study, and the Veteran's assertion that his sleep apnea is a manifestation of his in-service treatment/complaints of sleeping problems. He ultimately opined that it was less likely than not (less than 50 percent probability) that the Veteran's current diagnosis of sleep apnea was a result of service. His rationale included the following statement: Veteran contends that because he was evaluated by sleep study for obstructive sleep apnea during military service, this is evidence that he had the problem. The exact opposite is true. Veteran with sleep study done at Sleep Center Hawaii on 9/30/08 with an AHI of 0.4 (AHI up to 5.0 is normal). Therefore[,] the Veteran's sleep study obtained during military service and just prior to military separation with DD Form 214 reporting separated date of 12/31/08, clearly and unmistakably ruled-out a diagnosis of obstructive sleep apnea. Therefore[,] the veteran's complaints of sleeping problems during military service was proven by sleep study to be NOT the result of obstructive sleep apnea. See March 2014 VA Medical Opinion. The Board assigns the March 2014 VA examiner's opinion significant probative weight because it was based on a full examination of the claims folder, fully addressed the Veteran's in-service symptoms and contentions, and was supported by an adequate and persuasive rationale. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). There is no competent medical opinion to the contrary. In this regard, the Board recognizes the Veteran's assertion that there is a relationship between his current sleep apnea disability and his military service. To the extent the Veteran believes his sleep apnea disability is etiologically related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Specifically, the diagnosis and determination as to the etiology of sleep apnea are matters not capable of lay observation, and require medical expertise and testing to assess. Accordingly, his opinion as to the etiology of his sleep apnea is not competent medical evidence. Therefore, as the only competent medical opinion on the matter of nexus is against the claim, the claim for service connection fails. As the preponderance of the evidence is against the claim of entitlement to service connection for sleep apnea, the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER As new and material evidence has been received, the previously denied claim of service connection for a sleep disorder with insomnia is reopened; to this extent only, the appeal is granted. Entitlement to service connection for sleep apnea is denied. ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs