Citation Nr: 18149323 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-32 527 DATE: November 9, 2018 ORDER New and material evidence has been received and the claim for entitlement to service connection for diabetes mellitus type II (diabetes) is reopened. New and material evidence has been received and the claim for entitlement to service connection for gastric adenocarcinoma (stomach cancer) is reopened. New and material evidence has been received and the claim for entitlement to service connection for hypertension is reopened. Service connection for diabetes, secondary to service-connected obstructive sleep apnea (sleep apnea), is granted. Service connection for stomach cancer, secondary to service-connected sleep apnea, is granted. Service connection for hypertension, secondary to service-connected sleep apnea, is granted. FINDINGS OF FACT 1. A May 1995 rating decision that denied the Veteran’s original service connection claim for hypertension is final. 2. A June 1998 rating decision that denied the Veteran’s original service connection claim for diabetes is final. 3. A March 1999 rating decision that denied the Veteran’s original service connection claim for an undiagnosed illness manifested by stomach problems is final. 4. A February 2012 rating decision that declined to reopen the previously denied claim for service connection for diabetes is final. 5. A September 2013 rating decision that declined to reopen the previously denied claims for service connection for diabetes, an undiagnosed illness manifested by stomach problems, and hypertension is final. 6. Evidence received since the last final decision is both new and material to the claims of service connection for diabetes, stomach cancer, and hypertension. 7. The Veteran’s current diabetes is etiologically related to his service-connected sleep apnea. 8. The Veteran’s current stomach cancer is etiologically related to his service-connected sleep apnea. 9. The Veteran’s current hypertension is etiologically related to his service-connected sleep apnea. CONCLUSIONS OF LAW 1. The May 1995 rating decision that denied the Veteran’s original service connection claim for hypertension is final. See 38 U.S.C. §§ 7103, 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 2. The June 1998 rating decision that denied the Veteran’s original service connection claim for diabetes is final. See 38 U.S.C. §§ 7103, 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 3. The March 1999 rating decision that denied the Veteran’s original service connection claim for an undiagnosed illness manifested by stomach problems is final. See 38 U.S.C. §§ 7103, 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 4. The February 2012 rating decision that declined to reopen the previously denied claim for service connection for diabetes is final. See 38 U.S.C. §§ 7103, 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 5. The September 2013 rating decision that declined to reopen the previously denied claims for service connection for diabetes, an undiagnosed illness manifested by stomach problems, and hypertension is final. See 38 U.S.C. §§ 7103, 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 6. Evidence received subsequent to the last final decision is new and material, and the claims of service connection for diabetes, stomach cancer, and hypertension are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 7. The criteria for service connection for diabetes, secondary to service-connected sleep apnea, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 8. The criteria for service connection for stomach cancer, secondary to service-connected sleep apnea, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 9. The criteria for service connection for hypertension, secondary to service-connected sleep apnea, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from January 1970 to November 1981 and from March 1982 to January 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Regardless of any RO determination on the application to reopen, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New and Material Evidence The Board determines that a September 2013 rating decision that declined to reopen the previously denied claims for service connection for diabetes, an undiagnosed illness manifested by stomach problems, and hypertension is the last final rating decision on the matters at hand. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. On review, the Board reopens the diabetes, stomach cancer, and hypertension claims based on subsequent medical evidence showing a nexus between each of these conditions and the Veteran’s service-connected sleep apnea. This new evidence, coupled with the evidence already in the file, raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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 (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 (Fed. Cir. 2004). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310 (b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. 1. Entitlement to service connection for diabetes mellitus. As an initial matter, the Board finds that the Veteran has a current diagnosis of diabetes. See February 2013 Diabetes Mellitus Disability Benefits Questionnaire (DBQ). The Veteran contends that his current diabetes mellitus is etiologically related to his service-connected sleep apnea. Turning to the issue of etiology, in October 2015, the Veteran’s treating physician, Dr. C.S., opined that the Veteran’s diabetes was caused by underlying, undiagnosed, and untreated sleep apnea. Dr. C.S. is identified as a Board-Certified Sleep Specialist and has practiced sleep medicine for over 30 years. In June 2016, Dr. C.S. submitted an addendum opinion, indicating that untreated sleep apnea causes metabolic changes that result in diabetes and citing a scholarly article. This opinion is highly probative, as Dr. C.S. is an expert in sleep medicine, reviewed the Veteran’s service treatment records and post-service treatment records, and diagnosed and treated the Veteran’s sleep apnea. There is no contrary opinion of record nor is there sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In fact, Dr. M.E.D. who is a medical doctor associated with Scripps Coastal Medical Center had an opportunity to review Dr. C.S.’s statement and in a July 2016 statement, opined that, based upon Dr. C.S.’s medical expertise it does appear more likely than not that the Veteran’s severe obstructive sleep apnea contributed to his hypertension. For this reason, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for diabetes, as secondary to the service-connected sleep apnea, are met. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for stomach cancer. As an initial matter, the Board finds that the Veteran has a current diagnosis of stomach cancer. See April 2012 private treatment record. The Veteran contends that his current stomach cancer is etiologically related to his service-connected sleep apnea. Turning to the issue of etiology, in October 2015, the Veteran’s treating physician, Dr. C.S., opined that the Veteran’s stomach cancer was caused by underlying, undiagnosed, and untreated sleep apnea. As indicated, Dr. C.S. is identified as a Board-Certified Sleep Specialist with over 30 years of experience. In June 2016, Dr. C.S. submitted an addendum opinion, indicating that sleep apnea causes poor sleep and poor sleep compromises immune system functioning, leading to cancer. In support of this opinion, Dr. C.S. cited a scholarly article on the neuroimmunologic aspects of sleep loss. This opinion is highly probative based on Dr. C.S.’s credentials and his review of the Veteran’s service treatment records and post-service treatment records. He also diagnosed and treated the Veteran’s sleep apnea. There is no contrary opinion of record nor is there sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano, supra. In fact, Dr. M.E.D. who is a medical doctor associated with Scripps Coastal Medical Center had an opportunity to review Dr. C.S.’s statement and in a July 2016 statement, opined that, based upon Dr. C.S.’s medical expertise it does appear more likely than not that the Veteran’s severe obstructive sleep apnea may have been a factor in the development of gastric cancer due to the effects on the immune system. For this reason, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for stomach cancer, as secondary to the service-connected sleep apnea, have been met. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for hypertension. As an initial matter, the Board finds that the Veteran has a current diagnosis of hypertension. See April 2011 VA treatment record; February 2013 Hypertension Disability Benefits Questionnaire. The Veteran contends that his current hypertension is etiologically related to his service-connected sleep apnea. Turning to the issue of etiology, in October 2015, the Veteran’s treating physician, Dr. C.S., opined that the Veteran’s hypertension was caused by underlying, undiagnosed, and untreated sleep apnea. As noted, Dr. C.S. is identified as a Board-Certified Sleep Specialist with over 30 years. In June 2016, Dr. C.S. submitted an addendum opinion, indicating that untreated sleep apnea places significant biological stress on the cardiovascular system, resulting in hypertension. In support of this opinion, Dr. C.S. cited two scholarly articles on the link between sleep apnea and hypertension. This opinion is highly probative, as Dr. C.S. is an expert in sleep medicine, reviewed the Veteran’s service medical records and post-service treatment records, and diagnosed and treated the Veteran’s sleep apnea. There is no contrary opinion of record nor is there sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano, supra. In fact, Dr. M.E.D. who is a medical doctor associated with Scripps Coastal Medical Center had an opportunity to review Dr. C.S.’s statement and in a July 2016 statement, opined that, based upon Dr. C.S.’s medical expertise it does appear more likely than not that the Veteran’s severe obstructive sleep apnea contributed to his hypertension. (Continued on the next page)   For this reason, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for hypertension, as secondary to the service-connected sleep apnea, are met. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel