Citation Nr: 18146451 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-40 038 DATE: October 31, 2018 ORDER As new and material evidence has been received, entitlement to service connection for obstructive sleep apnea is reopened. Service connection for obstructive sleep apnea is granted. As new and material evidence has been received, entitlement to service connection for type II diabetes mellitus is reopened. REMANDED Entitlement to service connection for diabetes mellitus is remanded. FINDINGS OF FACT 1. An unappealed March 2014 rating decision that denied service connection for sleep apnea and diabetes mellitus is final. 2. New evidence received since the final March 2014 final rating decision raises a reasonable possibility of substantiating the service connection claims for sleep apnea and diabetes mellitus. 3. Resolving all doubt in the Veteran’s favor, his currently diagnosed obstructive sleep apnea had its onset during active service. CONCLUSIONS OF LAW 1. The March 2014 rating decision that denied the Veteran’s claim for service connection for obstructive sleep apnea and type II diabetes mellitus is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103 (2017). 2. Evidence received after the last final rating decision is new and material to the claim for service connection for an obstructive sleep apnea disability, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. Evidence received after the last final rating decision is new and material to the claim for service connection for diabetes mellitus, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to September 1978 and April 1982 to April 2002 in the United States Marine Corps. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issue of service connection for tinnitus has been recently certified to the Board. The Veteran requested a Board videoconference hearing in his September 2018 VA Form 9 but waived his Board hearing for the issues of service connection for obstructive sleep apnea and diabetes mellitus in his August 2016 VA Form 9. Therefore, the Board will only address the sleep apnea and diabetes claims, and the Board will issue a separate decision for the service connection claim for tinnitus after the Board hearing. New VA treatment records have been associated with the claims file after the July 2016 statement of the case. However, the additional VA treatment records are not pertinent to the claim and proceeding with adjudication of these issues does not prejudice the Veteran. 1. & 2. As new and material evidence has been received, entitlement to service connection for sleep apnea and diabetes mellitus is reopened. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Here, the RO denied the Veteran’s service connection claim for obstructive sleep apnea and diabetes mellitus in a March 2014 rating decision, finding that there was no evidence of a nexus to active service. The evidence considered at the time included the Veteran’s VA Form 21-526 EZ, service treatment records, and VA treatment records. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the March 2014 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Evidence relevant to the service connection claim for sleep apnea received since the March 2014 denial of the claim includes lay statements received by VA in August 2015 that relate the Veteran occasionally fell asleep at work, snored, and exhibited observed apneas during service. This evidence, specifically the lay evidence of symptoms of sleep apnea during service, relates to the unestablished element of a nexus in the prior denial. The additional evidence received since the March 2014 final denial is therefore new and material. The criteria for reopening the claim for service connection for obstructive sleep apnea are therefore met. Evidence relevant to the service connection claim for diabetes mellitus received since the March 2014 denial of the claim includes a lay statement received by VA in August 2015 that provided evidence the Veteran may have been exposed to herbicide agents at Camp Pendleton while steam cleaning vehicles that were used in Vietnam. This evidence, specifically the lay evidence of actual exposure to herbicide agents during service, relates to the unestablished element of a nexus in the prior denial when presumed credible for the purpose of reopening. The additional evidence received since the March 2014 final denial is therefore new and material. The criteria for reopening the claim for service connection for diabetes mellitus are therefore met. 3. Entitlement to service connection for sleep apnea is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. §3.303(d). Establishing service connection generally requires (1) medical 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Obstructive sleep apnea is not considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that his obstructive sleep apnea had its onset during active service. Turning the evidence of record, the Veteran has a current diagnosis of obstructive sleep apnea. See October 2010 VA treatment records and September 2015 VA examination. The Veteran denied frequent trouble sleeping in his September 1975 Report of Medical History at enlistment, and the medical examination at enlistment was clinically normal. The service treatment records are silent as to symptoms, diagnoses, or treatment for obstructive sleep apnea during service. However, on one June 1982 Report of Medial History, the Veteran reported that he “did not know” if he had had frequent trouble sleeping. Under the section labeled “Physician’s summary and elaboration of all pertinent data,” the examining physician indicated that the Veteran’s medical history was within normal limits; however, the physician did not directly address the Veteran’s response. In a March 2009 vocational rehabilitation functional assessment, the Veteran denied having problems sleeping. However, in a VA treatment record dated March 2010, the Veteran was diagnosed with obstructive sleep apnea. Further, VA treatment records dated May 2011 indicate the Veteran was diagnosed with sleep apnea after he presented with symptoms of snoring, observed apneas while he slept, and excessive daytime sleepiness. The Veteran submitted a statement in support of his claim to reopen service connection for sleep apnea in August 2015. The Veteran reported that he did not seek treatment for sleep apnea during service because he did not know that sleep apnea existed. Further, the Veteran reported that during most of his active service, he lived alone in his own residence. However, the Veteran recalled that a fellow soldier was upset with him in 1991 because he fell asleep at work. At the time, the focus was the war, and he did not seek treatment for his daytime fatigue. In 2001, the Veteran was sent to a two-week training at Camp Grayling, where he slept in an open squad room. A Colonial and several corpsmen told him he snored “like a small bear.” This incident occurred close to his retirement, so he did not follow up with a doctor at the time. Additionally, in his August 2015 statement, he reported that he began a relationship with K.F. in December 2001, before he was discharged from service. K.F. told the Veteran that he snored and stopped breathing when he slept. He discussed these symptoms with K.F.’s mother, a registered nurse, and she recommended that he ask for a sleep study. The Veteran reported he sought treatment, but was told the testing was unnecessary. He was finally tested for sleep apnea after service when he reported to a VA physician who was evaluating him for dyslexia that he was sleepy during the day. The Veteran also submitted a February 2015 letter to VA in August 2015 written by A.D.G., a fellow service member. A.D.G. reported that, in 1991, he served with the Veteran at a mobilization station in Cleveland, Ohio. He observed the Veteran fall asleep during work hours, despite not drinking alcohol, staying out late, or using tobacco. A.D.G. noted their hours were erratic and lengthy, and the Veteran’s periodic dozing during the day continued. A.D.G. reports he suggested to the Veteran that he should ask for a sleep study and believed the Veteran had classic symptoms of sleep apnea or narcolepsy. The Veteran submitted an additional undated statement from A.W.N., also a fellow service member, in August 2015. A.W.N. served with the Veteran from June 1994 to December 1995. During that time, he exercised with the Veteran every day during lunch. A.W.N. reported that, within 10 minutes of eating lunch, the Veteran would fall asleep on a sofa in the office. At the time, the Veteran related his daytime sleepiness to eating fried rice frequently for lunch. Further, A.W.N. stayed at the Veteran’s house for a short period between June 1994 and December 1995, and he described the Veteran as “not a mild snorer, he was a severe snorer.” The Veteran also submitted a January 2015 DBQ for sleep apnea from Dr. A.K. in August 2015. Dr. A.K. reported the Veteran had been diagnosed with obstructive sleep apnea before 2014, which was treated with a CPAP machine. Dr. A.K. noted that the Veteran’s fatigue caused by the sleep apnea impacted his ability to work. However, no etiology opinion was provided. The Veteran was afforded a VA examination for sleep apnea in September 2015. The examiner, a physician, confirmed the Veteran had a current diagnosis of obstructive sleep apnea. The report notes that the Veteran reported sleep issues to his primary care physician in 2008 and was tested for sleep apnea in 2010 by sleep study. The Veteran reported that his symptoms were significantly better, but he still experienced excessive daytime tiredness on some days. It was noted that the Veteran had a long history of snoring dating back to active service, and during service he frequently napped in the afternoon after lunch. The examiner concluded that it was less likely than not that the Veteran’s obstructive sleep apnea was incurred in or was caused by active service. In support of this conclusion, the examiner noted the Veteran’s discharge examination did not note a sleep disorder, and the Veteran denied symptoms relating to his sleep issues in an October 2005 VA treatment record. Further, the examiner noted the Veteran’s weight had increased since retiring from the military from 229 pounds in November 2002 to 270 pounds in July 2015. The examiner noted that weight gain was a significant factor for sleep apnea. The Veteran submitted a statement from a retired Colonel W.M.B. in support of his claim in March 2016. W.M.B reported that he served with the Veteran from 1999 to 2002. During this period, W.M.B. was billeted in the same location as the Veteran during a lengthy field evolution. On multiple occasions, W.M.B. observed the Veteran snoring “like a bear” and having difficulty breathing while he slept. On one such occasion, W.M.B. suggested the Veteran seek treatment from a unit Corpsman. He also attested to the Veteran’s honesty and professionalism. The Veteran was treated by a private physician, Dr. V.K., in August 2016. Dr. V.K. noted that this was the first visit with the Veteran is several years, as he had switched his primary care to VA. However, Dr. V.K. noted that the Veteran experienced difficulty with sleep apnea for many years, for which was undiagnosed and untreated for “quite some time” and which likely affected his performance of military duties beginning in his early 30s. The Board notes that proof of symptoms in service that are later diagnosed may be evidence of service “incurrence.” See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a), (d); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The medical evidence shows that the Veteran’s diagnosis of obstructive sleep apnea is characterized by symptoms of snoring, daytime fatigue, and apnea episodes. The competent and credible lay evidence of record includes several statements describing the Veteran’s loud snoring, daytime fatigue with frequent afternoon naps and falling asleep at work, and apnea episodes during service which supports the claim overall because it tends to show that the same symptoms that began during service were the basis for the later diagnosed obstructive sleep apnea. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993). Additionally, the Veteran also submitted an etiology opinion from Dr. A.K. that is probative and concludes that the onset of the sleep apnea was likely in his 30s during service. Although the September 2015 VA medical opinion weighs against the claim, the Board assigns it less probative weight because the examiner did not discuss the multiple competent and credible lay statements of record that describe apneas observed by third parties, daytime fatigue, frequent afternoon naps, falling asleep at work, and severe snoring during. Accordingly, based on the competent and credible lay and medical evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise that the Veteran’s obstructive sleep apnea had its onset during active service. Service connection is granted.   REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus is remanded. The Veteran contends that he was exposed to herbicide agents in service, and that his currently diagnosed diabetes mellitus was caused by this exposure. However, in this case, the Veteran does not contend he was exposed to herbicide agents in the Republic of Vietnam. Instead, the Veteran contends he was directly exposed to herbicide agents at Camp Pendleton when he was required to steam clean vehicles that were in service in the Republic of Vietnam. In support of his claim, the Veteran submitted a statement in August 2015 from W.T.S., a fellow service member. W.T.S. reported that he was stationed at Camp Pendleton for 10 months with the Veteran. During that time, W.T.S. reported that he and the Veteran were assigned to steam clean vehicles that had been heavily exposed to herbicide agents in the Republic of Vietnam. He indicated that washing one vehicle alone would soak their clothes with “Agent Orange contaminated water,” and they were required to clean up to 20 vehicles per day. However, the RO has not undertaken development to determine whether the Veteran’s contention regarding exposure to herbicide agents in this manner can be verified. The Veteran submitted a DBQ for diabetes mellitus in August 2015, which was completed by a physician, Dr. A.K. However, no etiology opinion was provided. In September 2015, the Veteran was afforded a VA examination for diabetes mellitus. The examiner, a physician, diagnosed the Veteran with type II diabetes mellitus. In addition, the examiner noted the medical records indicated the Veteran exhibited insulin resistance between 2006 and 2007. Further, the examiner reported that the Veteran’s 2002 medical examination at retirement did not document that the Veteran had diabetes, and the Veteran denied that he had diabetes on an October 2002 VA examination. Based on the above evidence, the examiner concluded that the Veteran’s diabetes was not incurred in or caused by active service. However, a service treatment record dated March 1997 showed the Veteran’s glucose level was slightly elevated on a blood test, but the examiner did not discuss the significance, if any, of this laboratory finding during service. Further, the evidence of record does not include a retirement or discharge examination dated in 2002. There is Report of Medical Examination for retirement dated 1998. Thus, either there are missing service treatment records not associated with the claims file or the examiner’s medical opinion is based, in part, on a factually faulty premise. Additionally, the examiner noted a review of medical records documented insulin resistance in 2006 to 2007, but these records are not associated with the claims file. Thus, a remand is warranted to address these issues. The matter is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Ensure all service treatment records have been obtained and associate any newly obtained service treatment records with the claims file. 3. Request from the Veteran specific dates, locations, and the nature of exposure to herbicide agents. See also August 2015 statements. 4. Undertake the appropriate development, to include requesting whether exposure to herbicide agents can be verified by JSRRC, to determine whether the Veteran was, in fact, exposed to herbicide agents during service at Camp Pendleton from steam cleaning vehicles that were previously in service in the Republic of Vietnam. See August 2015 statements. A memorandum of the findings should be associated with the claims file. 5. Then, if the claim cannot be granted based on confirmed exposure to herbicide agents, obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s diabetes mellitus. Whether an additional physical examination is warranted is left to the examiner’s discretion. All pertinent testing and evaluations should be completed. After a thorough review of the claims file, the examiner should: Provide an opinion as to whether the Veteran’s currently diagnosed type II diabetes mellitus had onset during or is otherwise related to service. *In doing so, discuss the significance, if any, of a March 1997 blood test that showed a slightly elevated glucose level during service. *Note that a negative etiology opinion cannot be solely based on a lack of symptoms, diagnosis, or treatment for diabetes mellitus during service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). (Continued on the next page)   6. Readjudicate the remanded claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel