Citation Nr: 18148520 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-30 281 DATE: November 7, 2018 ORDER 1. New and material evidence having been received, the claim of entitlement to service connection for atrial fibrillation is reopened. 2. Entitlement to service connection for atrial fibrillation as secondary to service-connected obstructive sleep apnea is granted. FINDINGS OF FACT 1. An October 2011 rating decision denied entitlement to service connection for atrial fibrillation. The Veteran did not timely appeal the decision, nor was new and material evidence submitted within one year of the decision. 2. Evidence has been received since the October 2011 rating decision that relates to an unestablished fact necessary to substantiate the claim for service connection for atrial fibrillation as secondary to service-connected obstructive sleep apnea, and that raises a reasonable possibility of substantiating the claim. 3. The Veteran has paroxysmal atrial fibrillation; the probative evidence of record is at least in equipoise as to whether the condition is caused by the Veteran’s service-connected obstructive sleep apnea. CONCLUSIONS OF LAW 1. The October 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. Evidence received since the October 2011 rating decision denying entitlement to service connection for atrial fibrillation is new and material, and the claim is reopened. 38 U.S.C. §§ 1113, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for service connection for atrial fibrillation, as secondary to service-connected obstructive sleep apnea, have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had verified active duty service with the United States Navy from January 1970 to May 1982 and from August 1982 to September 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which reopened and continued the denial of the Veteran’s claim in October 2011. The Board previously remanded this claim in January 2016 to the RO for issuance of a Statement of the Case regarding service connection for atrial fibrillation. 38 C.F.R. § 19.9. As the requested development has been completed, this matter has returned to the Board for appellate consideration. The Veteran has five separate issues for which he has filed a notice of disagreement. As the RO has continued to develop these issues, the Board declines to take jurisdiction over them at this time, as such action would only hinder and delay the procedural process. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for atrial fibrillation The Veteran seeks to reopen a previously-denied claim of service connection for atrial fibrillation, to include as secondary to service-connected obstructive sleep apnea. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously received by 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). Even where the RO determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO originally denied the Veteran’s claim for service connection for atrial fibrillation in an October 2011 rating decision on the bases that the Veteran did not suffer from this disability in service, and that no competent evidence linked this disability to his active service. The Veteran did not file a timely notice of disagreement regarding the October 2011 rating decision, and the Veteran did not submit any information or evidence within one year of the October 2011 rating decision to render the decision non-final for VA purposes. 38 C.F.R. § 3.156(b). Therefore, that decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Evidence received since the rating decision in October 2011 includes four medical opinions from private examiners. This evidence was not of record at the time of the prior denial and relates to an unestablished fact necessary to substantiate the claim, namely, the existence of a relationship between the Veteran’s atrial fibrillation and service-connected sleep apnea. As the new evidence is neither cumulative nor redundant, the claim for service connection for atrial fibrillation is reopened. See 38 C.F.R. § 3.156. 2. Entitlement to service connection for atrial fibrillation, to include as secondary to service-connected obstructive sleep apnea Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303. To establish service connection on a direct incurrence basis, the 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. Id. In addition, service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). To prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, the Veteran contends that he has atrial fibrillation aggravated by or proximately due to his service-connected obstructive sleep apnea. First, the record shows that the Veteran has a current diagnosis of paroxysmal atrial fibrillation. The Veteran’s diagnosis is noted in his VA treatment records with dates as recent as September 2018, as well as in a July 2018 VA examination. Therefore, there is evidence of a current disability, and the first element of secondary service connection has been met. Next, as to evidence of a service-connected disability, in its previous January 2016 decision, the Board granted service connection for sleep apnea. In a March 2016 rating decision, the RO effectuated this grant, assigning a 50 percent disability rating and an effective date of October 6, 2009. The second element of secondary service connection has thus been met. Accordingly, the issue remaining for consideration is whether the Veteran’s current atrial fibrillation is caused or aggravated by the service-connected obstructive sleep apnea. With respect to a nexus between the Veteran’s atrial fibrillation and service-connected obstructive sleep apnea, the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion is based on the expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Against a finding of a nexus are the opinions of two VA medical examiners. The Veteran was afforded VA medical examinations to investigate his claim in September 2013 and April 2016. The September 2013 examiner concluded that the Veteran’s atrial fibrillation was not due to or the result of service, and that the condition appeared to be resolved. The examiner noted that the Veteran had multiple conditions that could predispose the Veteran to atrial fibrillation, and that the Veteran was only diagnosed with obstructive sleep apnea in 1996, whereas the Veteran’s recorded episodes of atrial fibrillation had been from 1991 to 1994. As stated in its January 28, 2016 decision regarding the Veteran’s sleep apnea service connection claim, however, the Board is persuaded that the Veteran had symptoms of sleep apnea during service. Thus, the September 2013 VA examiner’s opinion is based on an inaccurate premise regarding the date that the Veteran began experiencing obstructive sleep apnea, and the Board assigns this opinion low probative value. The Veteran’s VA examiner in April 2016 also considered that the Veteran was diagnosed with atrial fibrillation “years before” obstructive sleep apnea, and that the conditions share several common risk factors. The examiner concluded that there was no evidence that obstructive sleep apnea had aggravated the Veteran’s atrial fibrillation. The Board finds this examiner’s opinion to be less than fully probative as it is also based on the inaccurate understanding that the Veteran’s service-connected obstructive sleep apnea only manifested years after the Veteran’s atrial fibrillation. The record also contains four medical opinions from private providers which support finding a nexus between the Veteran’s atrial fibrillation and service-connected obstructive sleep apnea. The Veteran was seen by one private medical examiner in October 2015, and by three others in June 2016. The October 2015 examiner opined that the Veteran’s atrial fibrillation was more likely than not caused or aggravated by the Veteran’s service-connected obstructive sleep apnea due to the known relationship and causal association between obstructive sleep apnea and paroxysmal atrial fibrillation. Three other private medical examiners drew the same conclusion upon seeing the Veteran in June 2016. One noted that the Veteran has had no recurrence of atrial fibrillation symptoms after initiating continuous positive airway pressure (CPAP) therapy, and stated that this makes a strong case to demonstrate that the Veteran’s service-connected obstructive sleep apnea is a contributing factor in the Veteran’s atrial fibrillation. The second June 2016 examiner highlighted that atrial fibrillation is a known complication of obstructive sleep apnea. In support of the same conclusion, the Veteran’s third private medical examiner in June 2016 indicated that atrial fibrillation and other cardiac conditions are prone to result from and be worsened by obstructive sleep apnea. The Board finds these opinions to be probative, as the physicians have each provided sufficient rationale and support for the conclusions reached. In view of the foregoing, the Board finds that the probative evidence of record is at least in equipoise as to whether the Veteran’s atrial fibrillation is caused by his service-connected obstructive sleep apnea. The Board acknowledges the negative VA opinions of record; however, when the VA determines the evidence supports the claim or is in relative equipoise, the Veteran’s claim must prevail. 38 U.S.C. § 5107. Accordingly, entitlement to service connection for atrial fibrillation, to include as secondary to service-connected obstructive sleep apnea, is warranted. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Ahsan, Associate Counsel