Citation Nr: 18146779 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 15-37 157 DATE: November 1, 2018 ORDER The request to reopen the finally disallowed claim of service connection for sleep apnea, to include as due to service-connected sinusitis and as due to claimed diabetes mellitus, is granted. Entitlement to service connection for sleep apnea is granted. The request to reopen the finally disallowed claim for service connection for diabetes mellitus, to include as due to sleep apnea, is granted. Entitlement to service connection for diabetes mellitus is denied. The request to reopen the finally disallowed claim of service connection for residuals of a traumatic brain injury (TBI) is granted. Entitlement to service connection for residuals of a TBI is denied. FINDINGS OF FACT 1. Although notified in January 2008, the Veteran did not appeal a December 2007 decision which denied service connection for sleep apnea. 2. No additional relevant service records were received after the December 2007, rating decision denying service connection for sleep apnea, and that rating decision is final. 3. The evidence received since the December 2007 rating decision as to a claim for service connection for sleep apnea is new and relevant and establishes a reasonable possibility of substantiating that claim for service connection and, upon de novo adjudication, that the evidence is in equipoise as to the Veteran’s sleep apnea being of service onset. 4. The Veteran was notified in October 2004 of a September 2004 rating decision which denied service connection for diabetes mellitus and after a September 2004 Notice of Disagreement (NOD) was received, a Statement of the Case (SOC) was issued in September 2006 but the appeal was not perfected by filing a Substantive Appeal, VA Form 9 or equivalent. 5. No additional relevant service records were received after the September 2004 rating decision denying service connection for diabetes mellitus, and that rating decision is final. 6. The evidence received since the September 2004 rating decision as to a claim for service connection for diabetes mellitus is new and relevant and establishes a reasonable possibility of substantiating that claim for service connection but upon de novo adjudication the evidence demonstrates that diabetes mellitus had its’ onset years after active service and is unrelated to military service and to sleep apnea. 7. Although notified in September 2002, the Veteran did not appeal an August 2002 rating decision which denied service connection for residuals of a head injury. 8. No additional relevant service records were received after the September 2002, rating decision denying service connection for residuals of a head injury, and that rating decision is final. 9. The evidence received since the August 2002 rating decision as to a claim for service connection for residuals of a TBI is new and relevant and establishes a reasonable possibility of substantiating that claim for service connection but upon de novo adjudication the evidence demonstrates that the Veteran does not have residuals of a TBI. CONCLUSIONS OF LAW 1. The December 2007 rating decision that denied the claim for service connection for sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.200, 20.302, 20.1103 (2018). 2. The criteria to reopen the finally disallowed claim of service connection for sleep apnea are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 4. The September 2004 rating decision that denied the claim for service connection for diabetes mellitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.200, 20.302, 20.1103 (2018). 5. The criteria to reopen the finally disallowed claim of service connection for diabetes mellitus are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 6. The criteria for entitlement to service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 7. The August 2002 rating decision that denied the claim for service connection for residuals of a head injury is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.200, 20.302, 20.1103 (2018). 8. The criteria to reopen the finally disallowed claim of service connection for residuals of a TBI, previously claimed as residuals of a head injury, are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 9. The criteria for entitlement to service connection for residuals of a TBI are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1990 to October 2000. This matter comes before the Board of Veterans’ Appeals (Board) from decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in November 2011, which denied reopening of claims for service connection for sleep apnea and for diabetes mellitus, and in June 2017 which denied service connection for residuals of TBI. The Veteran’s service-connected disabilities include cluster headaches, posttraumatic stress disorder (PTSD), sinusitis, and tinnitus. Background The February 1989 examination for enlistment was negative for sleep apnea, diabetes mellitus, and any residuals of a head injury or traumatic brain injury. In November 1990 the Veteran complained of a fever, chills, and headache. The assessment was pharyngitis. In December 1990 the Veteran was hospitalized for sinusitis and pneumonia. In February 1992 the Veteran had tonsillitis and his complaints included a headache. A clinical record, the date of which cannot be determined, reflects that the Veteran complained of having had a headache since the day before, and he also complained of sinus trouble. The impression was that he had a viral syndrome. In April 1992 it was reported that the Veteran had nonactive tuberculosis. He was scheduled to begin a course of medication. In November 1992 it was noted that the Veteran had been given a course of anti-tuberculous medication because of a positive test for tuberculosis. The assessment was Class 2 tuberculous infection, no active disease. In January 1993 the Veteran complained of a sore throat, fever, and congestion of his chest and nasal passages. After a physical examination the assessment was probable bronchitis, for which he was given an antibiotic. In September 1993 the Veteran complained of headaches. He stated that he had injured his head the day before, which was when his headache began. It was also reported that he had been struck on the side of his head on June 20th but had not had a loss of consciousness (LOC). On physical examination his head was atraumatic. The assessment was cephalgia. He was given medication and told to return to the clinic if the headache persisted or worsened. In October 1993, when there was an assessment of pharyngitis, the Veteran’s complaints included headaches. In July 1994, when there was an assessment of probable viral gastroenteritis (GE), the Veteran’s complaints included having a headache. In January 1997 the Veteran reported that he was sweating at night, mostly on his back. He had no other symptoms. Another clinical notation that same month noted that he presented with a complaint of night sweats which affected only his back. He had had a cough for 2 days but he believed it was due to smoking. He denied having any fever, any cough productive of phlegm or blood, and any significant weight loss. He did complain of fatigue. A chest X-ray revealed no active disease. A March 1997 clinical record shows that the Veteran had been a smoker since 13 years of age. In March 1998 it was noted that the Veteran smoked 10 cigarettes a day. He was referred for participation in a class for tobacco cessation. In November 1999 the Veteran’s complaints included headaches. The assessment was exudative pharyngitis. In June 2000 the Veteran complained of having had headaches for the last 3 months. His sinus area was tender. He reported that in 1993 he had had a “flat bed cart” fall on his head. After a physical examination the assessment was cephalgia. In July 2000 the Veteran complained of having had headaches for 3 months, but his history was not consistent with migraines. An MRI of his brain was normal except for minimal bilateral ethmoid sinusitis. In August 2000 the impression was cluster headaches. A July 2000 examination for service separation was negative. A medical history questionnaire in July 2000 in conjunction with examination for service discharge reflects that the Veteran complained of having daily headaches since his inservice right knee surgery, and sinusitis. He was taking allergy medication for his headaches. He also reported having had a head injury to his upper forehead, when a flat metal cart his head when it fell from a loading dock. He denied having or having had frequent trouble sleeping. In the Veteran’s original September 2000 claim for VA disability compensation he claimed service connection for, in part, a November 1993 head injury, as well as for headaches, and sinusitis. On official examination in April 2002 for, in part, migraine headaches and sinusitis, the Veteran reported having had sinusitis since 1992. He complained of pain around the left and right sides of his forehead, as well as the right and left cheeks. He complained of daily headaches, usually in the morning which lasted for a few hours. He did not use a respirator and denied a need for oxygen and denied having shortness of breath. He had had a good response to taking Claritin-D. He reported having had headaches since 2000, for which Midrin seem to give a good response. On examination the Veteran had about a 60 % obstruction of the right nostril and 40 % of the left nostril. Examination of his neurologic system was normal. The diagnoses were sinusitis and as to migraine headaches the diagnosis was changed to cluster headaches because of a lack of aura, distribution and timing which were more suggestive of cluster headaches. By RO letter of September 9, 2002, the Veteran was notified of a rating decision in August 2002 which denied service connection for a head injury, nonactive tuberculosis, and cluster headaches. Service connection was granted for sinusitis. Service connection was denied for cluster headaches because service records showed a one-time treatment with inservice resolution. Service connection was denied for a head injury because the service treatment records showed no evidence of treatment or injury of the head. VA outpatient treatment (VAOPT) records show that in November 2001 the Veteran was 71 inches in height and weighed 223 lbs. He had a history of having had headaches in the past and 6 months of treatment with “INH” for tuberculosis. He reported that he snored a lot. On physical examination he had massive tonsils, bilaterally. The assessment was that with his history of snoring, massive tonsils, and cephalgia it was strongly suspected that he had sleep apnea as a contributing factor. A VA clinical record of November 2002 reflects that the Veteran’s problems included headaches and hypersomnia with sleep apnea. Another clinical record in that month shows that his wife had witnessed apneas and “snorts” that awoke the Veteran. He was afforded a VA polysomnographic evaluation that month and the impression was moderately severe obstructive sleep apnea. It was noted that with massive tonsils and cephalgia, he might have sleep apnea on the basis of severe snoring. An April 2004 VAOPT record shows that the Veteran had been prescribed “Glipizide” tablets. In VA Form 21-4138, Statement in Support of Claim, received on May 25, 2004, the Veteran set forth claims for, in part, diabetes. He asserted that his STRs verified that he had “high sugar level.” An October 14, 2004, RO letter informed the Veteran of a September 2004 rating decision which, in part, denied service connection for diabetes. That rating decision found that the service records were negative for diabetes. A June 29, 2000, Progress Note in the STRs showed a normal glucose reading. The earliest evidence of diabetes was in June 2004, when VA clinical records showed that he was given medication for diabetes. The Veteran’s Notice of Disagreement (NOD) to the September 2004 denials of service connection for a back injury, gastritis, and diabetes mellitus was received on December 17, 2004. The Veteran reported that the fact that he developed diabetes after service was not significant because during service he was beginning to develop diabetes. The Veteran submitted, in February 2005, a letter in that same month from J. W., a service comrade and the Veteran’s platoon sergeant, who attested that during service the Veteran had had a major problem sleeping with fellow soldiers who had complained that his snoring was so loud that it could be heard outside his room. Sometimes fellow soldiers had to wake him up because he would stop breathing at night. On official spinal examination in March 2006 it was reported that the Veteran was 6 feet tall and weighed 233 lbs. A March 2006 VAOPT record noted that the Veteran had had diabetes for 2 to 3 years and he now used a “machine” for sleep apnea. He smoked 10 to 12 cigarettes daily and had started smoking at 17 years of age (although a January 2006 VAOPT record dated the onset of smoking to age 15). A September 27, 2006, Report of Contact reflects that after a telephonic discussion the Veteran did not desire a hearing before a Decision Review Officer (DRO) and because he had no further evidence to submit a Statement of the Case (SOC) could be issued and he could still request a Board hearing after the SOC. A September 27, 2006, SOC was issued which addressed the issues of entitlement to service connection for gastritis and diabetes mellitus, type II. No Substantive Appeal, VA Form 9 or equivalent, was ever received which would have perfected the appeal as to service connection for gastritis and diabetes mellitus, type II. In pertinent part, a December 18, 2007, rating decision denied service connection for sleep apnea on the basis that STRs were negative for complaints, treatment or diagnosis of sleep apnea. While the service comrade’s statement that the Veteran sometimes snored loudly was not a definitive sign of sleep apnea, which had to be diagnosed by sleep lab testing and diagnosed by a qualified medical physician, and this had not been done until November 14, 2002, two years after his discharge from service. The Veteran was notified of this decision by RO letter of January 3, 2008. No NOD was filed as to the December 2006 denial of service connection for sleep apnea. VAOPT records include a September 8, 2007, Traumatic Brain Injury Screening which noted that the Veteran had not been diagnosed with a TBI during military service. He denied having had symptoms immediately after any inservice explosion. A May 2009 VAOPT record reflects that the duration of the Veteran’s diabetes was 4 to 5 years. In VA Form 21-4138, Statement in Support of Claim, received on June 29, 2010, the Veteran again applied for service connection for diabetes, stating that he was submitting evidence that sleep apnea was “tied” to diabetes. He submitted an October 2009 article from “Diabetes Today” entitled “Sleepiness from Sleep Apnea Linked to Diabetes.” That article stated that “[a] new study from Canada hints that the risk of diabetes may be two to three times higher among people with severe sleep apnea who also suffer daytime sleepiness.” It further stated that “[t]his raises the intriguing possibility that sleepiness (or sleep disruption) may have an independent effect on the risk for diabetes.” It was stated that “[o]bstructive sleep apnea, or OSA, is a disorder in which the tissues at the back of the throat temporarily collapse during sleep, causing repeated stops and starts in breathing during the night. This leads to poor-quality sleep and, often, daytime drowsiness.” The article stated that of 2,149 people assessed as having obstructive sleep apnea (OSA) when about 50 years of age about 8 percent reported also having diabetes, and those with severe apnea were much more likely to have diabetes, even after consideration of other factors, e.g., age, body weight, gender, neck circumference, and smoking status. The increased risk for diabetes was primarily among participants with severe OSA who reported daytime sleepiness, and that more recently, OSA has been linked to resistance to the blood sugar-lowering hormone insulin and insulin resistance was a precursor to diabetes. In a VA Form 21-4138, Statement in Support of Claim, received in September 2010 the Veteran reported that ever since he was stationed in Germany, he had suffered "frequent urination", and it came to a point where his platoon sergeant had asked if he suffered from diabetes, to which he answered no. However due to being young and inexperienced, he had never been checked out for it. Also, because he at one time had had a long healing process from trench foot a private physician had asked him if he had diabetes, to which the Veteran had answered “No.” Thus, he believed that he had a series of symptoms during service indicating that he had diabetes. Also, as to headaches, the Veteran reported that he had had them after his inservice knee surgery and when he complained of it an officer in charge of physical therapy had attributed the headaches to something else. His headaches had continued. He had had a head injury during service involving a flatbed pushing cart falling on his head from a loading deck, but there were no witnesses and so no accident report was made. Also, he apparently had not lost consciousness and although he went on sick call, no report was generated. Concerning sleep apnea, the Veteran stated that during service his wife had told him about his snoring problem. He had not checked it out until after military service, when he had a VA sleep study in 2002. He believed that his inservice snoring was the earliest manifestation of sleep apnea. On official audiology examination in November 2011 the Veteran reported the onset of hearing loss and tinnitus in 2000 and as being due to inservice exposure to acoustic trauma. No mention was made of any head trauma. The examiner opined that the Veteran's hearing loss was at least as likely as not the result of loud noise exposure during his military service and the etiology of the tinnitus was at least as likely as not associated with hearing loss. A November 22, 2011 rating decision, while granting service connection for hearing loss and tinnitus, reopened the claims for service connection for diabetes and sleep apnea following the prior October 2004 rating decision which denied service connection for diabetes and the December 2007 rating which denied service connection for sleep apnea. The evidence that suggested that the risk for diabetes was increased if the patient already has obstructive sleep apnea was considered but the available evidence [did] not link your claimed [diabetes] to [his] military service, which ended in 1970 [italics added].” As to sleep apnea, the evidence did not link it to military service “which ended in 1970 [italics added].” The Veteran was notified of the November 22, 2011 rating decision by RO letter of November 30, 2011. Received on December 28, 2011, and duplicates again received on January 3, 2012, were some the Veteran’s service personnel records consisting of military orders as to his assignment in February 1999 to Bosnia. Also received on December 28, 2011, was another statement from the Veteran’s platoon sergeant that had submitted the earlier February 2005 letter. In this new letter it was reported that when stationed at Ft. Hood he had noted that the Veteran had a very serious health issue with his sleeping. Numerous times soldiers complained of the Veteran’s loud snoring and bout of struggling to breath, and even cessation of breathing. At times the soldiers would kick the Veteran’s cot to wake him up. The Veteran had been sent on several occasions for evaluation of his sleeping problems but nothing had ever been done. During a 7-month deployment to Bosnia in 1999 the Veteran’s condition got worse, and when sleeping he had to be placed in the center of a room to watch him in case he stopped breathing. Also received on December 28, 2011, was a duplicate copy of the article entitled “Sleepiness from Sleep Apnea Linked to Diabetes.” The Veteran’s NOD to the November 22, 2011, denials of service connection for sleep apnea and diabetes was received on January 4, 2012, with an enclosed duplicate of the statement from a platoon sergeant that was received on December 28, 2011. In VA Form 21-4138, Statement in Support of Claim, received in March 2013, the Veteran reported that his inservice symptoms of sleep apnea had been confused with symptoms of pulmonary tuberculosis. While at Ft. Hood he had explained to a military physician that he had night sweats to the point of leaving his blankets all wet, that he was tired all the time, and that he would go to sleep and would awaken tired. The doctor at that time sent him to take some X-rays of his lungs, to rule out any doubts that the Veteran’s inactive pulmonary TB would had become active. The results were negative, and because of that, there were no follow-ups. The Veteran now knew that those were symptoms of sleep apnea, which is what he had been trying to prove. Unfortunately, it was not until after two years after service that he realized that much of his health problems and headaches were caused by the low quality of his sleep. A sleep study had then confirmed that he had sleep apnea, for which he prescribed, and still used, a CPAP machine. In a December 2013 VA Form 21-4138, Statement in Support of Claim the Veteran alleged that his service-connected sinusitis had caused his sleep apnea. In VA Form 21-4138 in January 2014 the Veteran argued that the November 2001 findings of massive tonsils, cephalgia, and history of snoring was suggestive of his having had sleep apnea for such a length of time as to date back to his military service. In VA Form 21-4138 in June 2015 the Veteran clarified that he was not alleging that his sleep apnea was secondary to diabetes mellitus but, rather, was secondary to his service-connected sinusitis. During service his snoring, breathing difficulties, and night sweats had been misdiagnosed as allergies In a November 2016 VA Form 21-4138, Statement in Support of Claim the Veteran reported that during service he had been unloading repair parts from a transport van when the parts cart rolled and ultimately fell on me knocking him on the head and throwing me inside the van. He had reported the accident to my Lieutenant; she filled out an accident report form and sent him to medical to be checked out. Medical did not do anything besides tearing up the report. This injury continued to affect his daily living and activities. VAOPT record from 2011 to 2017 show continued treatment for obstructive sleep apnea and diabetes mellitus, as well as sinusitis and headaches. In conjunction with a claim for service connection for PTSD, a November 25, 2016, “DPRIS Response” reflects that the Veteran’s service personnel records were obtained, as well as a duplicate copy of the February 1989 Army Enlistment Examination Report. On VA examination on May 17, 2017, for headaches it was opined that the Veteran’s current cluster headaches were at least as likely as not incurred in and/or cause by treatment during his military service and that the same had continued after military service. On Disability Benefits Questionnaire examination of May 31, 2017, for evaluation of TBI the Veteran’s records were reviewed. He reported having served during the Gulf War and had served in Bosnia, and participated in combat activity. It was found that the Veteran did not have and had never had a TBI or any residuals of a TBI. He related having had a head injury in Germany when a parts cart struck his head. He was unsure if he had lost consciousness. He had been evaluated and released. The next day he felt ill and went to sick call but received no treatment and was released. He reported that “the paper records of this were torn up right before my eyes.” He reported that his current symptoms were chronic headaches, which he stated started in 2000 after his knee surgery. He also reported having been diagnosed with cluster headaches. He also related having problems with short term memory and orientation. He reported having been exposed to blasts, consisting of more than 3, with the first in 1996 and the last in 2000. None were severe enough to knock him down or cause injury. The examiner concluded that there was no diagnosis of TBI because there was no pathology to render a diagnosis. Although he described symptoms including chronic headaches, which he dated to 2000 after his knee surgery, he stated he was diagnosed with cluster headaches, memory problems mostly for short term, as well as difficulty with orientation, but these symptoms alone did not meet the criteria for a diagnosis of TBI. A June 25, 2017, rating decision reopened the claim for service connection for residuals of a TBI (previously claimed as residuals of a head injury) and denied that claim on a de novo basis. In VA Form 21-4138, Statement in Support of Claim, in August 2017 the Veteran averred that his residuals of TBI included headaches, memory problems, cognitive disorder, depressed mood, slow speech, slow thinking, confusion, and disorientation. Principles of Service Connection Service connection is warranted for disability incurred or aggravated during active service. 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are “medically chronic”), including diabetes mellitus, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word ‘chronic’), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of a chronic disability. 38 U.S.C. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). For a chronic disease to be shown during service or in a presumptive period means that it is “well diagnosed beyond question” or “beyond legitimate question.” Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). However, sleep apnea is not a chronic disease listed at 38 C.F.R. § 3.309(a). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Finality and Reopening of Prior Final Disallowed Claims The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with the respect the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision-makers. 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 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). VA must review all evidence submitted since the last final disallowance of the claim on any basis to determine whether a claim may be reopened based on new and material evidence. See Hickson v. west, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for purpose of reopening, unless it is inherently false or untrue or, if it is the nature of a statement or other assertion, it is beyond the scope of the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 247, 251 (1999). Accordingly, and regardless of a determination by the RO as to reopening, the claim may be considered on the merits only if the Board finds that new and material evidence has been received since the prior final adjudication. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In the reopening context a weighing of the favorable evidence against the unfavorable evidence is generally not undertaken. See Wilkinson v. Brown, 8 Vet. App. 263, 271 (1995). Only in adjudications de novo is the doctrine of the favorable resolution of doubt applicable. In such cases, the Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). 1. The application to reopen a claim for service connection for sleep apnea, to include as due to service-connected sinusitis and claimed diabetes mellitus The Veteran was notified by RO letter of January 3, 2008, of a December 2007 rating decision which denied service connection for sleep apnea. Since that time the only addition service records which have been received are service personnel records in conjunction with the Veteran’s unrelated claim for service connection for posttraumatic stress disorder (PTSD) which are not relevant to the claim for service connection for sleep apnea. Also, the Veteran has submitted duplicate copies of service treatment records (STRs), but these were previously on file and are not new. The Veteran did not appeal the December 2007 rating decision and, so, that decision is final based on the evidence then of record. Reopening The evidence of record at the time of the December 2007 rating decision included revealed that the Veteran had sinusitis and several upper respiratory infections (URIs) during service, and was even given medication to ensure that he did not develop active pulmonary tuberculosis. However, the STRs were negative for specific complaints of sleep disturbance. In November 2001, 13 months after service, it was felt that in light of his snoring, massive tonsils, and cephalgia that sleep apnea was suspected, and this was confirmed by a polysomnography in November 2002. The evidence also included a statement from his platoon sergeant that fellow soldiers had complained of the Veteran’s loud snoring and even awakened him because he would stop breathing while asleep. The evidence received since the August 2002 rating decision demonstrates that the Veteran had continued to receive VA treatment for sleep apnea. Significantly, the Veteran has submitted another statement from his platoon sergeant which describes in greater detail the Veteran’s problems with snoring and difficulty breathing while sleeping but also further states that the Veteran had been referred on several occasions for evaluation of his sleeping problems but nothing had been done. This additional evidence, when considered with the evidence previously of record is sufficient to raise a reasonable possibility of allowing the claim and, accordingly, is sufficient to reopen the claim for service connection for sleep apnea. De Novo Adjudication Upon de novo adjudication, the Board finds that the evidence is in equipoise as to whether the Veteran’s sleep apnea is of service onset. The Board has no reason to doubt the credibility of the statements from the Veteran’s platoon sergeant which corroborates the Veteran’s statements of what he was told by others, including his wife, as to his problems with sleeping. Moreover, although sleep apnea was first clinically suspected a little more than a year after service discharge, the November 2002 VA polysomnography found that the Veteran had sleep apnea and described it as being moderately severe. The severity at that time, i.e., in November 2002, reasonably suggests that the sleep apnea had existed for some time. In this connection there is evidence that the Veteran has what have been described as massive tonsils as contributing to the development of sleep apnea. As to this the Board observes that the Veteran had tonsillitis during service and in light of the latter finding of massive tonsils, it is clear that he did not undergo a tonsillectomy during service. When coupled with the credible and corroborating lay evidence from the Veteran’s platoon sergeant, the Board finds that the balance of positive and negative evidence is in approximate balance. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). Accordingly, service connection for sleep apnea is warranted. 2. The application to reopen a claim for service connection for diabetes mellitus, to include as due to claimed sleep apnea The Veteran was notified by RO letter of October 14, 2004, of a September 2004 rating decision which denied service connection for diabetes mellitus. The Veteran filed a Notice of Disagreement (NOD) to that decision but after a September 27, 2006, Statement of the Case (SOC) the appeal was never perfected by filing a Substantive Appeal, VA Form 9 or equivalent. Since that time the only addition service records which have been received are service personnel records in conjunction with the Veteran’s unrelated claim for service connection for PTSD which are not relevant to the claim for service connection for sleep apnea. Also, the Veteran has submitted duplicate copies of STRs, but these were previously on file and are not new. Accordingly, the September 2004 decision is final based on the evidence then of record. Reopening The evidence of record at the time of the September 2004 rating decision included affirmatively demonstrated that the Veteran’s diabetes mellitus was of postservice onset. Although the Veteran has reported having had elevated blood sugar levels during service, this was not shown by the STRs. The evidence received since the September 2004 rating decision consists of the Veteran’s allegations that diabetes is linked to his sleep apnea, for which service connection is being granted herein. In support of this he has submitted an article suggesting a correlation between those with sleep apnea being at greater risk for the development of diabetes mellitus. This additional evidence, when considered with the evidence previously of record is sufficient to raise a reasonable possibility of allowing the claim and, accordingly, is sufficient to reopen the claim for service connection for diabetes mellitus. De Novo Adjudication The Board is aware that the rating decision which is appealed, in 2011, erroneously stated that the Veteran’s military service ended in 1970, when in fact it began in 1990 and ended in 2000. Nevertheless, upon de novo adjudication, the Board finds that the preponderance of the evidence is against the claim for service connection for diabetes mellitus. Although the Veteran has attempted to link some symptoms during service, such as putative inservice frequent urination, with his having had diabetes at that time, the fact remains that diabetes mellitus was not clinically identified until many years after his military service. Further, the Veteran is not competent to opine that any particular symptom, or even set of symptoms, during service demonstrate the onset of diabetes during his active duty. Rather, the question of the etiology of his diabetes extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). With respect to the Veteran’s assertion that diabetes has been caused or impacted by sleep apnea, and particularly as to the article which the Veteran has submitted, that article does not come from a recognized medical organization or source. Moreover, that article does not explain the means by which sleep apnea, a respiratory disorder, could cause a metabolic disease, e.g., diabetes mellitus, or even impact in any way, upon a person’s metabolic system. Rather, that article merely suggests that there is a correlation. Even so, correlation is no proof of causation. “Correlation is defined as a ‘mutual relationship or connection’ or as ‘the degree of relative correspondence, as between two sets of data.’ WEBSTER'S NEW WORLD DICTIONARY 312 (3d ed. 1988).” Harvey v. Shulkin, No. 16-1515, slip op. at 13, footnote 5 (U.S.Vet.App. (Feb. 7, 2018) (panel decision). “A mutual relationship or some degree of correspondence that is not based on causation or aggravation is not sufficient to meet the requirements of [38 C.F.R.] § 3.310.” Harvey v. Shulkin, No. 16-1515, slip op. at 13 (U.S.Vet.App. (Feb. 7, 2018) (panel decision) (addressing an article suggesting a correlation between sleep apnea and psychiatric disorders). There is essentially no other supporting evidence as to any link between sleep apnea and the Veteran’s diabetes mellitus. Consequently, the Board must conclude that the preponderance of the evidence is against the claim for service connection for diabetes mellitus and, so, this claim must be denied. 3. The application to reopen a claim for service connection for residuals of a TBI The Veteran was notified by RO letter of September 9, 2002, of an August 2002 rating decision which denied service connection for residuals of a head injury. Since that time the only addition service records which have been received are service personnel records in conjunction with the Veteran’s unrelated claim for service connection for PTSD which are not relevant to the claim for service connection for sleep apnea. Also, the Veteran has submitted duplicate copies of STRs, but these were previously on file and are not new. The Veteran did not appeal the August 2002 rating decision and, so, that decision is final based on the evidence then of record. Reopening The evidence at the time of the August 2002 rating decision which denied service connection for residuals of a head injury consisted essentially of no more than his STRs. He attempted to link his headaches to an inservice head injury. At that time service connection was not in effect for headaches. Subsequently, service connection was granted for cluster headaches. Accordingly, the inservice evidence of a head injury together with now being service-connected for headaches is sufficient to raise a reasonable possibility of allowing the claim and, accordingly, is sufficient to reopen the claim for service connection for residuals of a TBI. De Novo Adjudication Upon de novo adjudication, the Board finds that the preponderance of the evidence is against the claim for service connection for residuals of a TBI. In this connection, the Veteran has averred that paperwork relative to his seeking treatment for a 1993 head injury was destroyed. However, the Board notes that there are STRs which reflect, and corroborate, that he did have a head injury during active service. The Veteran also seeks to associate a variety of symptoms with his inservice head injury. For example, he attributes his cluster headaches to that injury. However, service connection for headaches was not granted on the basis of being due to or the result of an inservice head injury. Also, the Veteran had attribute such things as memory impairment and impaired orientation to his inservice head injury. However, it must be noted that these are psychiatric symptoms and, moreover, the Veteran is now service-connected for PTSD, a psychiatric disorder. Here again, the question of what symptoms could be manifestations of residuals of a TBI extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In sum, the Veteran is not competent to attribute any of the specific symptoms he has described to being chronic residuals of an inservice head injury. In fact, a recent examination was conducted to determine if he had any residuals of a TBI. The opinion of that examiner was that the Veteran did not have residuals of a TBI. That examiner reviewed the evidence of record, including evidence of the Veteran’s having been subjected to blasts or explosions. In sum, the examiner found that there was no pathology upon which to predicate a diagnosis of residuals of a TBI. The Board gives this medical opinion significant probative value. This negative medical opinion stands unrefuted by any competent evidence of record. Thus, the Board finds that the preponderance of the evidence is against the claim for service connection for residuals of a TBI. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs