Citation Nr: 1804797 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-24 468A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for sleep apnea. 2. Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a heart disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 (characterized by the RO as a request for service connection for a stent in an aorta to the heart). 4. Entitlement to a disability rating in excess of 10 percent prior to November 30, 2010, and in excess of 30 percent thereafter, for PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The Veteran honorably served on active duty from July 1981 to June 2004. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In April 2017, the Veteran testified during a Video Conference hearing before the undersigned Veteran's Law Judge. A transcript of this hearing has been associated with the claims file. The issues of entitlement to (1) service connection for sleep apnea and (2) a disability rating in excess of 10 percent prior to November 30, 2010 and 30 percent thereafter for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). For the record, this appeal was processed using the Veteran's Benefits Management System (VBMS), CaseFlow Reader and Legacy Content Manager. FINDINGS OF FACT 1. The RO last denied service connection for sleep apnea in an August 2004 rating decision; the Veteran was notified of the denial and his appellate rights at that time, but he did finalize an appeal; and no new evidence was received for this claim within the appeal period. 2. Evidence received since the last final denial for sleep apnea includes information that was not previously considered and that relates to an unestablished fact necessary to substantiate the claim. 3. In August 2010, the Veteran was diagnosed with coronary artery disease and underwent a heart catheterization with a stent placement. 4. The preponderance of the evidence if against finding that the Veteran suffers from a heart disability related to service or resulting from an undiagnosed illness or a medically unexplained chronic multisystem illness. CONCLUSIONS OF LAW 1. The August 2004 RO denial of service connection for sleep apnea became final, but new and material evidence has been received to reopen the previously denied claim. 38 C.F.R. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.202, 20.302, 20.1103 (2017). 2. The preponderance of the evidence is against finding that the Veteran developed a heart disability, to include coronary artery disease, in service and may not be presumed to be related to his period of service in the Persian Gulf. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence In August 2004, the RO denied the Veteran's claim of entitlement to service connection for sleep apnea. The Veteran was notified of the denial and his appellate rights at that time. He submitted a notice of disagreement in December 2004. Thereafter, the RO issued a statement of the case in September 2005. The Veteran did not file a VA Form-9 or other document that could be construed as a substantive appeal to complete his appeal. Additionally, no new evidence was received for the Veteran's sleep apnea claim within the appeal period. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). If new and material is received before the appeal period expires, it will be considered as having been filed with the claim that was pending at the beginning of the appeal period, and the denial will not be considered final. Bond v. Shinseki, 659 F.3d 1362, 1367-1368 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). 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 cannot be cumulative or redundant of the evidence of record at the time of the prior final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. There must be new and material evidence as to at least one, but not all, of the bases for the prior denial. Id. at 120 (noting that the assistance required by 38 C.F.R. § 3.156(c)(4) would be rendered meaningless if the standard for new and material evidence required a claimant to submit medical nexus evidence where new and material evidence was provided as to another missing element). The phrase "raises a reasonable possibility of substantiating the claim" has been interpreted as "enabling rather than precluding reopening." Id. at 121. For the purpose of determining whether evidence is new and material, it is presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, medical records and a VA examination report associated with the claims file since the August 2004 rating decision raise a reasonable possibility of substantiating the Veteran's claim inasmuch as they appear to show that the Veteran has a current diagnosis of sleep apnea. In addition, the Veteran recently submitted ten buddy/lay statements attesting to the Veteran's snoring and other symptomatology that may be related to a diagnosis of sleep apnea in service. See Shade v. Shinseki, 24 Vet. App. 110 (2010); see also July 2016 BVA hearing transcript. The Board finds this evidence to be both new and material. Therefore, the claim of entitlement to service connection for sleep apnea is reopened. 38 C.F.R. § 3.156(a). Overview of Service Connection Claims In this appeal, the Veteran seeks service connection for sleep apnea and a heart disability, to include as being due to exposures during the Gulf War. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regulations provide that service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Furthermore, veterans serving in the Southwest Asia theater of operations during the Persian Gulf War are defined in 38 C.F.R. § 3.2 and 38 C.F.R. § 3.17 (a)(1)(ii). Those veterans are deemed a "Persian Gulf veterans" for the purposes of being eligible for consideration of compensation for certain disabilities due to undiagnosed illnesses. 38 U.S.C.§ 1117, 38 C.F.R. § 3.317. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Turning to the record in this case, the Veteran seeks service connection for a heart disability, based directly on such a disability developing in service or constituting a qualifying chronic disability under 38 C.F.R. § 3.317. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Initially, the Board observes that a review of the Veteran's service medical records appear to be absent of any complaints of or treatment for conditions or symptoms that could be related to the heart. The Veteran was not diagnosed with any heart condition in service. Although a review of the Veteran's service retirement examination in March 2004 reflects his reports of having experienced chest pain, the Veteran was provided with an ECG that was determined to be completely normal at that time. He testified during his April 2017 BVA hearing that he did not remember when he was first diagnosed or treated for any heart condition or how soon after service this occurred. However, a review of the post-service medical records in this case appear to indicate that the Veteran was not diagnosed with coronary artery disease, and did not undergo his heart catheterization and a stent, until August 2010, six years after he separated from service. Based upon this evidence, the Board finds no direct link between the Veteran's current diagnosis of coronary artery disease and his long period of service. In regards to the Veteran's argument that he developed a heart disability as a result of his service in the Persian Gulf, the Board observes that the claims file contains a "Gulf War General Medical Examination" dated in September 2014. A review of the September 2014 VA examination report reveals a VA examiner's review of the Veteran's medical records and his diagnosis of coronary artery disease in 2010. After reviewing all pertinent records, the examiner opined that the Veteran's coronary artery disease was a diagnosable disease with a partially explained etiology. The examiner went on to state that there was no medical body of evidence linking the development of coronary artery disease to any environmental exposure event in Southwest Asia. Therefore, he opined that it was less likely than not that the Veteran's coronary artery disease was secondary to or represented a pattern of disability related to an exposure event experienced by the Veteran in Southwest Asia. Although the Veteran may disagree with the findings set forth above, the Board observes that there is no competent evidence in the record that appears to support his claim or contradict the above-referenced medical opinion. In this regard, even the Veteran's testimony during his April 2017 BVA hearing regarding his heart disability and his belief as to its relationship to his service in the Persian Gulf is vague and non-supportive. To the extent that the Veteran disagrees with the medical findings set forth above, the Board finds his argument to be less persuasive than the medical opinion provided by the September 2014 VA examiner. Although the Veteran is competent to report of things that occurred in service, such as his April 2017 testimony that he "coughed up orange dirt and muck" while serving in Southwest Asia, he is not competent to connect these experiences or medical symptoms to his presently diagnosed coronary heart disease (i.e., he is not competent to provide a medical nexus opinion) since coronary artery disease is not a disorder that can be easily identified by a layperson. See, e.g., Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed. Cir. 2007). Therefore, based upon the current evidence of record, the Board finds that the preponderance of the evidence is against finding the Veteran's heart disability, to specifically include his coronary artery disease, is related in any way to service; and his claim must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against this claim. As such, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence having been received; the service connection claim for sleep apnea is reopened. Service connection for a heart disability, to include coronary heart disease, is denied. REMAND In this appeal, the Veteran seeks service connection for sleep apnea and an increased rating for his service-connected PTSD. Turning to the Veteran's claim of entitlement to service connection for sleep apnea, the Veteran was previously denied service connection on the basis of a May 2004 service exit examination during which he initially reported that he experienced sleep apnea, but then recanted by stating that he primarily suffered from night sweets and that he did not know what sleep apnea was. As such, the person examining him opined that there was no evidence, history or claim of sleep apnea, but rather the Veteran had been referring to nocturnal sweating; and the RO denied his sleep apnea claim. Thereafter, the Veteran requested that his sleep apnea claim be reviewed again on the basis that he believed he developed the disorder secondary to his service-connected PTSD. In response, the Veteran was afforded a VA examination in August 2011 during which the VA examiner opined that there was no relationship between the Veteran's sleep apnea and PTSD. The VA examiner did not, however, address the question as to whether the Veteran's now-diagnosed sleep apnea may be related to service. During his April 2017 BVA hearing, the Veteran testified that he remembers being told on numerous occasions in service that he snored loudly, always seemed tired and would at times stop breathing. Specifically, he testified that servicemen he bunked with while in Saudi Arabia in 1990 and 1992 told him that he snored so loud that they could not sleep. He also testified that there were times in service during which he would fall asleep at his desk and start snoring. When confronted, he simply told co-servicemen that he must not have gotten enough rest. He indicated to the undersigned Veteran's Law Judge that he did not report his snoring/sleeping difficulties in service because it was "frowned upon" for someone in his position to go to sick call for this type of symptomatology. Subsequent to retiring from service in 2004, the Veteran stated that he realized that his sleep/snoring problems were worse when his wife, who had also served in the Army with him, woke him up at times telling him that he was snoring incredibly loud and had in fact stopped breathing. The Veteran testified that he continued to have the same symptoms of snoring and fatigue that he had in service after he left service; but did not seek medical treatment until six years after he separated from service. He was then diagnosed with sleep apnea. Although the Veteran's service medical records only appear to contain one reference to sleep apnea (on exit examination in May 2004), the Board observes that the Veteran recently submitted ten statements from men with whom he served during his approximately 23 years in service, attesting to their observations of the Veteran experiencing problems with snoring and sleeping while in service. To the Board, it appears somewhat contradictory that the Veteran could have sleep apnea symptoms reported by himself and ten other service men with whom he had contact over a period of 20 years, but not have sleep apnea from 2004 (when he separated from service) until 2010 (when he was diagnosed with sleep apnea). Given the fact that the Veteran has not been afforded a VA examination that considers the evidence supportive of sleep apnea symptomatology in service, the Board finds a remand of this newly reopened claim for a VA examination to be in order. As for the Veteran's request for an increase for his service-connected PTSD, the Board observes that during the April 2017 Board hearing referenced above, the Veteran testified that his service-connected PTSD disability had worsened and that he was willing to attend a new VA examination to ascertain the current severity of his disability. Based on the Veteran's testimony of worsening symptomatology, and the fact that his last VA examination related to his PTSD appears to have taken place in August 2011, the Board finds that he should be afforded another VA examination to determine the current severity of his service-connected right shoulder disability. Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should review the Veteran's claims file (to include the records contained in VA's Legacy Content Manager) and obtain any outstanding medical records related to treatment of his PTSD. 2. The AOJ should schedule the Veteran for a VA examination to determine the current severity of his service-connected PTSD. 3. The AOJ should schedule the Veteran for a VA examination to determine whether it is at least as likely as not that the Veteran's post-service diagnosis of sleep apnea is related to service after considering all of the evidence of record, to include the ten lay statements recently submitted on the Veteran's behalf. 4. After undertaking any other development deemed appropriate, the AOJ should readjudicate the issues on appeal. If the benefits sought are not granted, the AOJ should issue a supplemental statement of the case and provide the Veteran, and his representative, with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs