Citation Nr: 18140263 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-10 028 DATE: October 2, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for obstructive sleep apnea is reopened. Entitlement to service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. A February 2011 rating decision denied the Veteran’s claim to reopen his previously denied claim of entitlement to service connection for obstructive sleep apnea. 2. Evidence received since the February 2011 rating decision include lay statements from the Veteran’s wife and fellow service members. This evidence was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. A preponderance of the evidence of record does not establish that the Veteran’s currently diagnosed obstructive sleep apnea was related to any disease or injury incurred in service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for obstructive sleep apnea has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1966 to November 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105, 7266; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Id. at 117-18. In this case, a February 2011 rating decision denied the Veteran’s claim of entitlement to service connection for obstructive sleep apnea, as there was insufficient evidence of record connecting the Veteran’s diagnosed sleep apnea and service. As this decision was not challenged, it has become final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed new claims for entitlement to service connection for obstructive sleep apnea in September 2011 and April 2012, which were denied in a March 2013 rating decision, as there was no new and material evidence submitted. However, the Veteran submitted an additional claim to reopen in June 2013, and submitted lay statements from his wife and fellow service members indicating that they witnessed the Veteran snoring during his period of service. As this evidence was submitted prior to the expiration of the appellate period of the March 2013 rating decision, the Board finds that the March 2013 rating decision had not become final. See 38 C.F.R. § 3.156(b). Further, the Board finds these newly added lay statements to be new, as they were not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the Veteran’s claim, specifically, the in-service element of service connection. Additionally, the evidence is neither cumulative nor redundant, as this evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Accordingly, for all the above reasons, the Veteran’s claim for entitlement to service connection for obstructive sleep apnea is reopened. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) 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 evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Additionally, entitlement to service connection may be established on a secondary basis to an already service-connected disability. To substantiate a claim for secondary service connection, evidence is needed to establish that the non-service-connected current disability is either proximately due to, or the result of, a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran claims that he is entitled to service connection for obstructive sleep apnea because he experienced symptoms of tiredness and sleepiness in service. The medical evidence of record establishes that the Veteran has a current diagnosis of obstructive sleep apnea; therefore, the first element of service connection has been established. Regarding the second element of service connection, the Board finds there to be insufficient evidence to establish that the Veteran had obstructive sleep apnea, or symptoms thereof, in service. Of record is an August 2013 statement from the Veteran’s wife indicating that the Veteran experienced snoring during his time in service. Also, a July 2013 statement from a fellow service member who served with the Veteran in Italy from 1976 to 1978 and again in Germany from 1980 to 1984 allegedly witnessed the Veteran being fatigued and showing signs of lack of concentration, and also witnessed him snoring loudly. Finally, a statement from an individual who served with the Veteran in Italy from 1976 to 1978 allegedly observed on numerous occasions symptoms of sleep apnea. Specifically, the Veteran at times appeared to be “out of it” and showed “signs of a lack of concentration.” Additionally, he would “show signs of being overly tired or fatigued when [they] pulled 12-hour shifts during exercises in support of Operation Readiness Inspections.” The Board finds these recent statements to be outweighed by the numerous examinations and reports of medical history of record from the Veteran’s period of service. Specifically, a November 1977 examination did not note any sleeping difficulties, and the Veteran himself noted in his report of medical history that he did not experience any trouble sleeping. Similarly, a January 1982 examination, and the Veteran’s report of medical history completed at the same time, did not note any sleeping issues. Again, in the Veteran’s September 1988 examination and report of medical history completed for his separation, there was no indication of any sleeping issues, and the Veteran reported not having any trouble sleeping. Even during an April 1989 examination taken for the Veteran’s retirement, after his separation from service, there was no indication of any sleeping issues, and the Veteran reported not having any trouble sleeping. Accordingly, the Board finds the preponderance of the evidence goes against a finding that the Veteran experienced obstructive sleep apnea symptoms during service. Even if there were sufficient evidence to establish the in-service element, there is insufficient evidence to establish the nexus element. The Veteran was provided a VA examination for his obstructive sleep apnea in January 2017, where he was provided a diagnosis of obstructive sleep apnea, with an onset of August 2010. The Veteran reported the following symptoms: daytime sleepiness, snoring, gastroesophageal reflux disease, sleep that was not restful, fatigue, and difficulties with concentration. At the time, the Veteran denied grasping for breath. The examiner opined that the claimed sleep apnea was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there were no reports of any sleep difficulties while in service. The Veteran endorsed fatigue and lack of concentration. However, the examiner noted that although fatigue, lack of concentration, and “zoning out,” can be associated with sleep apnea, these symptoms are not diagnostic of sleep apnea. Additionally, fatigue can be caused by stress, depression, and long working hours, which the examiner noted was mentioned in the lay statements of record. Further, the examiner indicated that the documented increase in weight could be the cause for the Veteran’s development of obstructive sleep apnea. The Veteran’s attorney claims that this examination is inadequate because “the examiner relied upon an absence of medical records to support his conclusion that the veteran’s sleep condition was not related to his military service.” The Board disagrees with this contention and finds the examination to be adequate. The January 2017 examiner took into consideration the Veteran’s reports of fatigue and lack of concentration during service, but found, based on a review of the entire record, including lay statements, that these symptoms were most likely not related to the Veteran’s 2010-diagnosed obstructive sleep apnea. Further, there are no clinical opinions to the contrary, nor has the Veteran provided any competent and credible evidence linking his current sleep apnea to symptoms he experienced in service. Although he submitted lay statements from his spouse and fellow service members, they are not competent to conclude that he had sleep apnea symptoms in service or that his current sleep apnea is related to an event, injury, or disease in service. In sum, the most probative evidence of record shows no link between the Veteran’s current sleep apnea and his military service. Accordingly, the Board finds that a preponderance of the evidence is against the claim, and entitlement to service connection for obstructive sleep apnea is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel