Citation Nr: 18144015 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-08 444 DATE: October 22, 2018 ORDER New and material evidence has been submitted and the request to reopen the claim for entitlement to service connection for obstructive sleep apnea (OSA), to include snoring, is granted. Entitlement to service connection for OSA, to include snoring, is granted. FINDING OF FACT 1. Service connection for snoring was denied by the regional office (RO) in a rating decision of June 2009. The Veteran did not appeal and no new and material evidence was received within a year of the denial; therefore, the decision became final. 2. The evidence submitted since the RO’s June 2009 decision is relevant and probative of the issue of service connection for snoring. 3. The Veteran’s OSA began during active service. CONCLUSION OF LAW 1. The June 2009 decision, which denied, inter alia, service connection for snoring is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the June 2009 rating decision is new and material as to the issue of service connection for snoring, and the claim is reopened as to this issue. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1987 to May 2009. In August 2017, a signed statement was received from the Veteran requesting to remove Veterans of Foreign Wars of the US (VFW) as his representative, and that he would be representing himself. The Veteran may elect to withdraw his representation at any time. See 38 C.F.R. § 20.608 (defining procedures for withdrawal of representation); see also VA Form 21-22, October 2013 (establishing representation by VFW, but acknowledging that disclosures to this organization may be revoked by the Veteran in writing). The Board defers to the Veteran’s preference in this matter, and his appeal is now before the Board in an unrepresented, or pro se, posture. The Board acknowledges the Veteran’s July 2015 request to have new evidence submitted be considered by the RO. However, since the Board is granting the Veteran’s claim in full, it finds that there is no due process violation in proceeding with adjudication. 1. New and material evidence has been submitted and the request to reopen the claim for entitlement to service connection for OSA, to include snoring, is granted. A prior final decision will be reopened if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). The Board notes that the applicable regulation requires that new and material evidence is evidence which has not been previously submitted to agency decision makers which relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In June 2009, the RO denied the Veteran’s claim for service connection for snoring. The Veteran did not appeal and no new and material evidence was submitted within a year of the denial; as such, the decision became final. The denial was based on a finding that even though there was evidence of and treatment for snoring both in service and thereafter, there was no associated pathology to render a diagnosis, or there was no diagnosed disability. At the time of the denial the record contained the service treatment records (STRs), VA examination and the Veteran’s statements. The Board has made a careful review of the record, and concludes that since the prior final denial, new and material evidence has been associated with the file, affording sufficient grounds to reopen the Veteran’s claim. Specifically, the Board points to an opinion provided by the Veteran’s primary care provider, which states that the Veteran has been officially diagnosed with OSA and that, in her opinion, it is more likely than not that the Veteran suffered from OSA since before he retired from serving his country. See Physician Opinion, December 2014. This diagnosis and nexus opinion cures an evidentiary defect which existed at the time of the prior denial, namely, the lack of a diagnosed disability. As new and material evidence has been received, the Board concludes that the claim for entitlement to service connection for OSA, to include snoring, is reopened and, in this regard, the Veteran’s appeal is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Entitlement to service connection for OSA, to include snoring, is granted. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. 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 disability was incurred in service. 38 C.F.R. § 3.303 (d). The Board finds that the Veteran meets the criteria for service connection. First, the Board notes that the Veteran has been diagnosed with OSA. See Private Treatment Polysomnogram Report, April 2015. In addition, as discussed above, the Veteran’s primary care provider submitted an opinion, received in December 2014, which states that the Veteran has a diagnosis of OSA. She states that she reviewed the Veteran’s military records, and that in her opinion his OSA was present while he was in service. In support of her opinion, she cites to treatment in June 2006 and February 2009. The Board finds this opinion to be competent and credible. It is also supported by other evidence of record. For example, the Board points to lay statements from the Veteran’s spouse, received in August 2013, in which she contends that when the Veteran returned home from deployment in Kosovo in 1999, she noticed that his snoring had gotten louder. She states that she would attempt to turn him over or push him hoping that his snoring would stop. She also states that when he returned from his 2007 deployment to Iraq, his breathing and snoring were worse. He would wake up several times a night and that at times it appeared that he would stop breathing. She states that when the Veteran retired in 2009, he went to a civilian doctor for a sleep study and was prescribed a CPAP, which allows him to sleep normally. Given the above medical and lay evidence, the Board finds that the Veteran meets the criteria for service connection. Accordingly, the claim is granted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel