Citation Nr: 1601593 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 12-24 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a sleep disorder, to include obstructive sleep apnea (OSA). 2. Entitlement to service connection for a sleep disorder, to include OSA. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his Wife ATTORNEY FOR THE BOARD A. Roggenkamp, Associate Counsel INTRODUCTION The Veteran had active service from November 1993 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which denied the Veteran's petition to reopen a claim of service connection for a sleep disorder. Following the receipt of additional evidence, the RO reopened the claim in a May 2015 supplemental statement of the case and denied the case on the merits. Regardless of the RO's characterization of the issue on appeal, the Board must determine whether new and material evidence has been submitted to reopen the claim of service connection for a sleep disorder. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); The Veteran testified at a videoconference hearing in November 2015 before the undersigned. A copy of the transcript has been associated with the Veteran's electronic claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In an unappealed September 2003 RO decision, service connection for a sleep disorder was denied. 2. New evidence received since the September 2003 decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim of service connection for a sleep disorder. 3. The preponderance of the evidence reflects that the Veteran does not have a sleep disorder to include OSA due to any incident of his active duty service. CONCLUSIONS OF LAW 1. The September 2003 RO decision denying service connection for a sleep disorder is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2015). 2. New and material evidence has been received since the RO's September 2003 decision, and the claim of service connection for a sleep disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The Veteran's sleep disorder, diagnosed as OSA, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions set forth in the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). Prior to initial adjudication, a letter dated in March 2011 satisfied the duty to notify provisions with regard to the Veteran's claim. The letter not only informed the Veteran of the requirement to submit new and material evidence to reopen his claim but also how to substantiate his underlying claim of service connection. The Veteran's available service treatment records, VA medical treatment records, service personnel records, and indicated private medical records relating to the Veteran's claimed disability has been obtained. A VA examination adequate for adjudication purposes was provided to the Veteran in August 2014 in connection with his claim. The examination is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes his sleep disorder in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Veteran testified at a hearing in November 2015. The hearing focused on the elements necessary to substantiate a service connection claim and, through his testimony, the Veteran demonstrated that he had actual knowledge that he needed to show the elements of service connection. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Further, the Veteran had ample opportunity to submit evidence and argument to substantiate the claim. The examination did not address the elements required to reopen a case; however, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U.S. 396, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. II. New and Material Evidence In a September 2003 rating decision, the RO denied the Veteran's claim for service connection for a sleep disorder on the basis that the condition of a sleep disorder neither occurred in nor was caused by service. The Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the September 2003 rating decision became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2015). The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C.A. § 7104(b) (West 2014); King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). 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 (2015). 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) (2015). 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). The Veteran provided medical and lay evidence that he was diagnosed with OSA in August 2010. In a December 2014 lay statement, the Veteran also provided evidence that he was discharged from the military due to weight gain, and that weight gain is a contributing factor to OSA. OSA is considered a sleep disorder. This evidence is new, because it was not available when the September 2003 case was decided, and it is material, because it speaks to whether the Veteran's sleep disorder occurred in or was caused by service. The Veteran's claim for a sleep disorder is reopened. III. Service Connection 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 (2014); 38 C.F.R. § 3.303 (2015). 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 for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a) (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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) (2015). 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 (2015); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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). 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). 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 three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must 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 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 is seeking service connection for a sleep disorder. In 1996, the Veteran went to the emergency room for dizziness and an inability to sleep. The emergency room doctors noted that the Veteran worked a shift from 3:00am to 2:00pm, and noted that the Veteran said that he was unable to regulate his sleeping patterns. The Veteran was treated with Benadryl as a sleep aid, and told not to take naps. In March 2010, a VA treatment note indicated that the Veteran's wife became concerned because the Veteran would stop breathing at night, and snored loudly. The Veteran also indicated that he awoke several times a week gasping for breath, and that he had fallen asleep while driving. The Veteran was diagnosed with OSA in a sleep study in August 2010. In an August 2010 treatment note, the Veteran's physician noted that he had a history of snoring for several years, but it had increased dramatically in the prior two to three years. The physician also noted that the Veteran had gained 10 to 20 pounds in the prior few years. In September 2013, the Veteran's wife submitted a lay statement indicating that as long as she had known the Veteran, beginning in 1996, he snored loudly. She also indicated that she had witnessed the Veteran have long pauses in breathing and sometimes choking or gasping for air during sleep. She noted that occasionally she shook him awake when he stopped breathing during sleep. She also stated that the Veteran had gained weight throughout his time in the military, and it continued after discharge. She finished by stating that she believed the Veteran had undiagnosed sleep apnea since February 1996. On the Veteran's September 2012 VA Form 9, the Veteran submitted a lay statement indicating that he gained weight in service, and that weight gain is a symptom of sleep apnea. He noted that he had headaches, another symptom of sleep apnea, and snored while on active duty, occasionally waking gasping for air or choking in his sleep. In August 2014, the Veteran underwent a VA examination for his OSA. The examiner found that the Veteran's OSA was less likely than not related to service. As rationale, the examiner reported that there was no record or documentation of a weight gain problem during service, nor any treatment for weight gain, and there was also no documentation of signs or symptoms of OSA in service. The Veteran objected to this opinion in a December 2014 lay statement, indicating that he was discharged from service due to weight gain. In January 2015, the Veteran underwent a VA file review for an addendum opinion, in response to the Veteran's December 2014 lay statement. The examiner reviewed the Veteran's medical history, and chronicled the Veteran's weight and sleep disorder history. The examiner concluded that it was less likely than not that the Veteran's weight gain in service caused his OSA. As rationale, the examiner noted that at the time of enlistment, the Veteran's Body Mass Index (BMI) was borderline obese. His weight fluctuated throughout service, between 175 and 194 pounds, but his weight in 1998 was essentially unchanged from his weight at enlistment. Post-military medical records showed weight increases continuing after separation, with the Veteran reaching a BMI of 40, which is considered morbid obesity, in October 2008, around the same time the Veteran and his wife reported witnessing loud snoring and difficulty breathing. Additionally, in the records for the Veteran's sleep evaluation, he indicated that he had only experienced an onset of OSA symptoms two to three years prior to his diagnosis in 2010. The examiner stated that peer reviewed medical literature has found that obesity is the strongest risk factor for the development of OSA, and that the risk increases dramatically the higher one's BMI becomes. The examiner opined that, "based on objective documentation of OSA symptom onset corresponding to 2005-2006 (several years after military separation), as well as lack of objective evidence of treatment in service, it is my opinion that it is less likely than not that the Veteran's weight gain in [the] military caused the current sleep apnea." At the Veteran's November 2015 hearing, he and his wife both testified that the Veteran snored while on active duty; the Veteran's wife noticed it beginning in 1997, when they became engaged. The Veteran indicated that he had pauses in his breath while sleeping and would wake up with headaches, a sore throat, and congestion. The Veteran's wife testified that in 2007, she noticed that he would stop breathing during sleep, and she would shake him awake to get him to start breathing again. She later indicated that she occasionally had to wake him from gasping for air while he was in service, as well. The Veteran stated that he snored before he met his wife, where barracks-mates would complain about his snoring, and that throughout their engagement and marriage, his wife had difficulty sleeping due to his snoring. The Veteran also testified that he used to fall asleep while driving while he was in the military. He indicated that upon diagnosis, his apnea was so severe that the sleep clinic did not want him to drive the hour and a half drive home from his sleep study. The Veteran also testified that his headaches were due to his sleep apnea, and he espoused a belief that if he had been tested sooner, he would have been diagnosed sooner. The findings of the January 2015 VA file review are entitled to significant probative weight. This review relied on previous examinations, as well as a complete review of the Veteran's claims file and peer-reviewed medical literature, in order to reach its conclusions. The Veteran's OSA symptoms are first documented in the last ten years, which coincided with a significant weight gain from the Veteran and a corresponding rise in BMI. The Veteran and his wife testified that the Veteran snored and occasionally had apneic symptoms in service. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this case, the Veteran and his wife are competent to testify to the symptoms they perceived throughout their marriage regarding the Veteran's snoring; however, they lack the requisite medical knowledge and training to competently provide a conclusion that the snoring in service was a symptom of OSA. Because of this, the findings of the January 2015 VA examiner are afforded greater weight. The Veteran has been diagnosed with the sleep disorder of OSA. However, based on the evidence provided in the claims file and on the opinion of the January 2015 VA examiner, it is less likely than not that the Veteran's OSA was caused by or related to service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable, and the appellant's claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER New and material evidence has been presented to reopen the claim of service connection for a sleep disorder. Service connection for a sleep disorder, diagnosed as OSA, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs