Citation Nr: 18145887 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 18-19 248 DATE: October 30, 2018 ORDER The application to reopen the previously disallowed claim for service connection for sleep apnea is denied. FINDINGS OF FACT 1. By a decision entered in July 2009, the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina denied the Veteran’s claim for service connection for sleep apnea; he was advised of the RO’s decision and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s July 2009 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. The new evidence received since the time of the RO’s July 2009 decision is cumulative and does not relate to an unestablished fact necessary to substantiate the Veteran’s claim. CONCLUSIONS OF LAW 1. The July 2009 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the Veteran’s claim for service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1981 to December 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision. The application to reopen the previously disallowed claim for service connection for sleep apnea is denied. 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 the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 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 an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In the present case, the evidence reflects that the RO denied the Veteran’s claim for service connection for sleep apnea by a decision entered in July 2009. Following a review of the claims file as it then existed, the RO concluded that although the record contained a current diagnosis of sleep apnea, the Veteran’s service treatment records contained no reference to complaints or treatment for a sleep disorder and, as such, did not support the conclusion that sleep apnea was incurred in or caused by service. The Veteran was advised of the RO’s decision, and of his appellate rights, by letter dated in August 2009. No pertinent evidence was received during the one-year period following mailing of notice of the RO’s May 1989 decision. See 38 C.F.R. § 3.156(b). Nor did the Veteran initiate an appeal within that time frame. As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (West 2014); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran has not submitted any additional evidence that relates to the reason his claim was previously denied. Although new evidence has been received which reflects ongoing treatment for sleep apnea, none of the new evidence provides meaningful support for the conclusion that sleep apnea was incurred in or aggravated by service. As such, the Board must conclude that new and material evidence to reopen the claim has not been received. The appeal is denied. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel