Citation Nr: 18142947 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-22 953 DATE: October 17, 2018 ORDER New and material evidence has not been received; as such, the application to reopen a claim for service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. An April 2012 rating decision denied service connection for obstructive sleep apnea based on direct service connection. The Veteran was informed in writing of the adverse decision and of his appellate rights in April 2012. The Veteran did not appeal this decision and it became final. 2. A July 2012 rating decision denied service connection for obstructive sleep apnea claimed as secondary to service connected post-traumatic stress disorder. The Veteran was informed in writing of the adverse decision and his appellate rights that same month. The Veteran did not appeal this decision and it became final. 3. New and material evidence has not been received since the final April 2012 and July 2012 rating decisions which denied obstructive sleep apnea. CONCLUSION OF LAW New and material evidence has not been received to reopen a claim of entitlement to service connection for obstructive sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2003 to March 2007. The Veteran initially asserted that his sleep apnea was due to “illegal burn pits” at Camp Taji, Iraq. That claim was denied in an April 2012 rating decision for lack of a nexus, noting that the Veteran’s sleep apnea was diagnosed more than 2 years after he left the service. In May 2012, the Veteran filed an application for service connection for OSA due to PTSD. The Veteran was afforded a VA examination in June 2012, and the examiner opined that although the Veteran had sleep apnea, it is “due to an upper airway obstructive condition. It is in no [way] caused by or aggravated by PTSD.” The Board finds this conclusion to be competent, credible, and highly probative, as it is supported by an in-person examination, review of the relevant medical records, medical expertise, and an adequate rationale. The Veteran’s claim was denied in a July 2012 rating decision, which considered the new theory of sleep apnea secondary to service-connected PTSD, as well as the Veteran’s original theory of sleep apnea due to burn pit exposure. As noted above, the Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of the May 2012 or July 2012 rating decisions. Therefore, the decisions are final. 38 U.S.C. § 7105 (b)(1); 38 C.F.R. §§ 20.302, 20.1103. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in July 2012, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has sleep apnea as a result of an in-service injury or illness, or as secondary to his service-connected PTSD. The evidence of record at the time of the May and July 2012 rating decisions included the Veteran’s service treatment records (STR) and VA treatment records. The Board notes that the Veteran was diagnosed with sleep apnea in a November 2010 sleep study and was prescribed a CPAP machine, as reported in a March 2011 sleep medicine note. The Veteran’s prescription for Trazodone was noted in a March 2009 medication reconciliation note. The Veteran and his representative have argued that his sleep apnea is related to his PTSD. However, since the May and July 2012 rating decisions, there has been no additional medical evidence submitted to support that contention. The treatment records associated with the file since the May and July 2012 rating decisions include only the ongoing treatment of the Veteran’s OSA, they do not provide any medical link between the Veteran’s PTSD and his OSA or burn pit exposure and OSA. Moreover, the Veteran’s representative’s argument that the initial sleep study finding of mild OSA, which noted the Veteran’s history of PTSD, showed a link between the two was addressed in the May 2012 VA examination. The examiner concluded that there was no link between the Veteran’s OSA and his PTSD. In sum, since the May and July 2012 rating decisions, the Veteran has provided additional arguments and VA treatment records have been associated with the file, however, the Veteran has not presented any non-cumulative evidence which indicates that there is a nexus between any current sleep apnea and burn pits in Iraq or his service-connected PTSD. As the evidence received since the last final decision is cumulative of the evidence already of record, and does not provide a reasonable possibility of substantiating the claim, the Board finds that the Veteran has not submitted, and VA has not otherwise received, new and material evidence to support the application to reopen the claim for sleep apnea, either on a direct basis due to burn pit exposure, or on a secondary basis due to the Veteran’s service-connected PTSD. Accordingly, the claim of entitlement to service connection for sleep apnea is not reopened. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel