Citation Nr: 18146431 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-20 312 DATE: October 31, 2018 ORDER Entitlement to service connection for sleep apnea, as secondary to service-connected narcolepsy is granted. New and material evidence having been received, the claim of entitlement to service connection for hypertension, as secondary to sleep apnea, is reopened. The appeal is allowed to this extent. REMANDED The issue of entitlement to service connection for hypertension, as secondary to sleep apnea is remanded. FINDING OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his sleep apnea is proximately due to his service-connected narcolepsy. 2. A September 2011 Board decision denied service connection for hypertension. It was held that hypertension was first demonstrated years post-service and was unrelated to any in-service occurrence or event. The Veteran was notified and did not appeal. 3. Evidence received since the September 2011Board decision relates to an unestablished fact necessary to substantiate the claim and is not cumulative or redundant. CONCLUSION OF LAW 1. The criteria for secondary service connection for sleep apnea are met. 38 U.S.C. §1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. Evidence received since the September 2011 Board final decision is new and material and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from April 1987 to April 1990. The Veteran testified before the undersigned Veterans Law Judge during an October 2016 Travel Board hearing; a transcript is of record. 1. Service connection for sleep apnea, as secondary to service-connected narcolepsy Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran maintains that his sleep apnea and service-connected narcolepsy are related. See October 2016 Board hearing transcript. In this case, the Veteran has a current diagnosis of sleep apnea based on the results of a June 1997 private sleep study and an October 2004 VA polysomnographic evaluation. Thus, the issue before the Board is whether his sleep apnea is proximately due to or a result of his service-connected narcolepsy. In support of his contention, the Veteran submitted a letter dated December 2016 by his treating physician, Dr. Faber, where he reported that an overnight sleep polysomnographic study was done in September 11, 2015 and it found “numerous occurrences of sleep apnea indicative of a diagnosis of severe central sleep apnea.” He then continued: It is thus far more likely than not that severe central sleep apnea is a continuation of the same condition afflicting Mr. [redacted] which was originally diagnosed as narcolepsy. Dr. Faber, as noted in his December 2016 letter, treated the Veteran from June 2003 at VA and was the psychiatrist who ordered a sleep study back in 2004. The Veteran also submitted another letter dated December 2016 by another treating physician, Dr. Pedroza, in which he opined that his central apnea is at least as likely as not secondary to his narcolepsy, based on a review of the Veteran’s medical records since 1987 when he was initially diagnosed with hyperventilation. The Board notes that the Veteran underwent a VA examination in June 2012, where the examiner opined that the 2004 sleep study was “considered suggestive of obstructive sleep apnea, but not diagnostic of the condition” and concluded that the claimed condition was less likely than not proximately due to or the result of the Veteran’s narcolepsy. In this case, the Board considers the December 2016 letters submitted by the Veteran more probative since, especially, Dr. Faber’s evaluation is based on a more recent sleep study conducted in 2015 where he observed progression of his sleep disorder since he first treated the Veteran in 2003. Considering the Veteran’s claims file in its entirety, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s sleep apnea is proximately due to or the result of his service-connected narcolepsy. Therefore, resolving reasonable doubt in his favor, the Board finds that service connection for the residuals of a right heel injury is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. New and material evidence to reopen the claim of entitlement to service connection for hypertension The Veteran’s claim for entitlement to service connection for hypertension was denied in the Board decision in September 2011, and no request for reconsideration or appeal was filed. Therefore, the September 2011 Board decision is final, and this is the decision that the Veteran must reopen. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The Veteran now asserts that he is entitled to service connection for hypertension, as secondary to sleep apnea. Generally, when a claim is disallowed by the Board, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decisionmakers. “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 (a). The Court has held that the phrase “‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. A claimant may submit an application or claim to reopen a disallowed claim, when VA must provide some limited assistance. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before claim is reopened); see 38 C.F.R. § 3.159 (c)(1)-(3) (2011). Although there may be multiple theories or means of establishing entitlement to service connection (i.e., service connection on a direct basis vs. a secondary basis, etc.), if the theories of entitlement all pertain to the same benefit for the same disability, then they constitute the same claim and would require new and material evidence to reopen. See Roebuck v. Nicholson, 20 Vet. App. 307 (2007). Therefore, if a pervious denial was on a direct basis, and did not consider presumptive service connection, this does not render the service connection claim reopened. The claimant must still submit new and material evidence to reopen the claim. As determined in Bingham v. Nicholson, 421 F.3d 1346, 1349 (Fed. Cir. 2005), “finality attaches once a claim for benefits is disallowed, not when a particular theory [of entitlement to service connection] is rejected.” The Board will therefore undertake a de novo review of the new and material evidence question raised by the Veteran’s petition to reopen the claim of entitlement to service connection for hypertension, to include as secondary to sleep apnea. During the case development and proceeding leading to the September 2011 Board final decision, the Veteran did not contend that his hypertension was secondary to sleep apnea, and thus, the theory of secondary connection was not at issue and not considered by the Board. However, in April 2012, the Veteran filed a claim for service connection for sleep apnea as secondary to narcolepsy and another claim for service connection for hypertension as secondary to sleep apnea. He is now granted the service connection for his sleep apnea in this current Board decision as above. Since the allowance of his claim for service connection for his sleep apnea as secondary to narcolepsy raises a reasonable possibility of substantiating the claim for service connection for hypertension as secondary to sleep apnea, the evidence is new and material and reopening of the claim for entitlement to service connection for hypertension is therefore warranted. REASONS FOR REMAND Service connection for hypertension, as secondary to sleep apnea. A June 2012 VA examiner opined that the Veteran’s hypertension was less likely than not incurred or caused by sleep apnea. The rationale was that the Veteran does not have obstructive sleep apnea, rather he has central sleep apnea. The Board finds that this rationale is inadequate for rating purposes since the examiner failed to explain why the difference between obstructive sleep apnea and central sleep apnea is important in determining an etiology of the Veteran’s hypertension. Provided that both types of sleep apnea are known to share the same multiple symptoms resulted from insufficient breathing while asleep, an addendum opinion which explains why the difference between central and obstructive is important and also thoroughly considers the etiology of the Veteran’s hypertension and its possible connection to sleep apnea in general is requested. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the reports of the September 2015 sleep study, as mentioned in the December 2016 letter from Dr. Farber. Make two requests for the authorized records from Dr. Farber, unless it is clear after the first request that a second request would be futile. 2. Then, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not related to his service or proximately due to or aggravated beyond its natural progression by service-connected disability, to include sleep apnea. A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 3. After the development requested has been completed, the AOJ should review the development to ensure that it is in complete compliance with the directives of this remand. If the development is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel