Citation Nr: 18149669 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-46 793 DATE: November 13, 2018 ORDER 1. New and material evidence having been submitted, the claim of entitlement to service connection for obstructive sleep apnea is reopened. 2. Service connection for obstructive sleep apnea, as secondary to service-connected allergic rhinitis, is granted. FINDINGS OF FACT 1. A May 2007 rating decision denied service connection for obstructive sleep apnea. The Veteran was notified of his rights, but did not appeal the denial or submit new and material evidence during the applicable one-year appellate period. 2. The evidence submitted by the Veteran subsequent to the May 2007 rating decision is neither cumulative nor redundant of the evidence previously submitted by the Veteran into the record. 3. The Veteran has a current diagnosis of obstructive sleep apnea, and the evidence of record preponderates in favor of finding it is caused or aggravated by the Veteran’s service-connected allergic rhinitis. CONCLUSIONS OF LAW 1. The May 2007 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for obstructive sleep apnea has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for obstructive sleep apnea as secondary to service-connected allergic rhinitis have been satisfied. 38 U.S.C. §§ 1101, 1110, 5107, 7104; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from July 1999 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied reopening the Veteran’s service connection claim for obstructive sleep apnea. The Veteran’s Form 9 indicates that he did not request a Board hearing. New and Material Evidence Rating decisions from which an appeal is not perfected become final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and, after a statement of the case has been furnished, a timely filed substantive appeal. See 38 C.F.R. § 20.200. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received sufficient to reopen the denied claim before addressing the merits of the claim, regardless of whether the agency of original jurisdiction (AOJ) has already addressed the question of reopening. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence is defined as evidence not previously submitted to agency decisionmakers and which is 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. See 38 C.F.R. § 3.156(a). In order to be considered material, the new evidence must, either by itself or when considered with previous evidence of record, (1) relate to an unestablished fact necessary to substantiate the claim; and (2) raise a reasonable possibility of substantiating the claim. See id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate any element of the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See id. However, a new theory of entitlement does not automatically reopen a previously denied claim. See Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran first filed a claim for service connection for obstructive sleep apnea in October 2006. A May 2007 rating decision denied service connection on the grounds that the evidence of record did not establish a nexus between the Veteran’s obstructive sleep apnea diagnosis and his active military service. The Veteran did not perfect an appeal by filing a notice of disagreement. While additional evidence was submitted within one year, it did not pertain to the sleep apnea. Therefore, the May 2007 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record at the time of the May 2007 rating decision included copies of the Veteran’s service treatment records, 2005 to 2006 private treatment records, and a May 2007 VA psychiatric examination. Since the issuance of the May 2007 rating decision, the Veteran has provided additional evidence material to his claim for obstructive sleep apnea in the form of a March 2017 private medical opinion finding a causal relationship between the Veteran’s obstructive sleep apnea diagnosis and his service-connected disabilities. Because this evidence did not exist in the record at the time of the May 2007 rating decision, it has not previously been submitted to agency decisionmakers and is thus neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the Veteran’s claim. In addition, this new evidence is also material to the Veteran’s claim because it relates to the previously unestablished fact of a causal relationship between the Veteran’s current obstructive sleep apnea and his active military service and could therefore reasonably substantiate that element of the Veteran’s service connection claim. Accordingly, the Board finds that reopening the Veteran’s claim for service connection for obstructive sleep apnea is warranted. Service connection for obstructive sleep apnea, as secondary to service-connected allergic rhinitis, is granted. The Veteran contends that his current diagnosis of obstructive sleep apnea is causally related to his service-connected allergic rhinitis. In the alternative, the Veteran argues that his obstructive sleep apnea is related to his obesity, which began during his active military service, worsened significantly during the year following his separation, and is causally related to his service-connected anxiety disorder. Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to a service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998). Service connection for the Veteran’s allergic rhinitis and generalized anxiety disorder was awarded in July 2005. In addition, the Veteran’s private treatment records reflect that he was diagnosed with obstructive sleep apnea in December 2005. Accordingly, the Veteran has established that he suffers from a current disability, and the sole remaining issue for adjudication involves whether the Veteran’s obstructive sleep apnea is causally related to his service-connected allergic rhinitis or generalized anxiety disorder. Turning to the issue of a nexus, the Veteran has submitted a March 2017 report prepared by a board-certified family practice physician (Dr. G) opining in part that the Veteran’s obstructive sleep apnea is at least as likely as not proximately due to or the result of the Veteran’s service-connected allergic rhinitis. As support for his opinion, Dr. G presented an extensive review of relevant medical literature indicating an implied relationship between a pre-existing condition of chronic allergic rhinitis and a subsequent sleep apnea diagnosis. On this basis, Dr. G opined that allergic rhinitis has a well-documented causative role in obstructive sleep apnea. The causal relationship described by Dr. G is substantiated by the evidence of record in this case, including the Veteran’s service treatment records reflecting his September 2002 in-service treatment for symptoms of allergic rhinitis, a May 2005 VA examination report indicating a diagnosis of chronic allergic rhinitis, and the 2005 to 2006 private treatment records reflecting the Veteran’s December 2005 diagnosis of obstructive sleep apnea. Therefore, the Board finds that the evidence of record is consistent with Dr. G’s opinion that the Veteran’s service-connected allergic rhinitis caused his obstructive sleep apnea, and absent competent credible evidence to the contrary, the Board declines to further question Dr. G’s medical conclusions or the competent medical evidence of record supporting those conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the Board finds Dr. G’s opinion highly probative to the extent that it provides a positive nexus between the Veteran’s obstructive sleep apnea and his service-connected allergic rhinitis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).  Based on the foregoing, the Board finds that the evidence of record preponderates in favor of a finding that the Veteran’s obstructive sleep apnea is caused by his service-connected allergic rhinitis. See 38 C.F.R. § 3.310. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hannah Marsdale, Associate Counsel