Citation Nr: 18149736 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-06 525 DATE: November 13, 2018 ORDER 1. New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened. 2. Service connection for sleep apnea is granted. FINDING OF FACT 1. A March 2012 rating decision denied the Veteran’s claim of entitlement to service connection for sleep apnea; the Veteran did not appeal this rating decision and no new and material evidence was received during the relevant appeal period. 2. Evidence received since the March 2012 rating decision is new and substantiates the Veteran’s claim for entitlement to service connection for sleep apnea. 3. The Veteran’s sleep apnea is proximately due to or the result of his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for secondary service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for the United States Air Force from March 1982 to August 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. New and material evidence claim Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence includes evidence that was not previously submitted to agency decision makers that may reasonably substantiate the claim. 38 C.F.R. § 3.156(a). In order to be new and material evidence, the evidence must not be cumulative or redundant, and must raise a reasonable possibility of substantiating the claim, which has been found to be enabling, not preclusive. Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for sleep apnea was initially denied in a March 2012 rating decision on the basis that there was no medical evidence showing a current sleep apnea diagnosis and the Veteran’s service treatment records did not show any complaints of or treatment for sleep apnea. Although notified of the decision, the Veteran did not appeal the March 2012 denial of the claim or submit evidence during the appeal period. Thus, the March 2012 rating decision is final. The evidence added to the record, including a private medical exam, reflects an independent medical review where the examiner opined that it is as likely as not that the Veteran’s currently diagnosed sleep apnea is related to his PTSD. As such, the evidence added to the record is sufficient evidence to be considered new and material, as it presents a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for sleep apnea is reopened and the appeal is granted to this extent. Service connection for sleep apnea The Veteran contends that his sleep apnea is a proximate result of his service connected PTSD. The Veteran was granted service connection for PTSD with an evaluation of 50 percent in July 2014. Secondary service connection will be granted if the evidence demonstrates that a current disability is proximately due to or the result of a service-connected disability; or has been aggravated beyond its natural progress by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As noted above, the Veteran has a current diagnosis of sleep apnea. Further, the Veteran submitted an April 2017 private medical exam from Dr. P., who opined that it is at least as likely as not that the Veteran’s sleep apnea is proximately due to or the result of his service-connected PTSD. Dr. P., specializing in neurology and sleep medicine, performed an independent medical review of the Veteran’s medical records and symptoms. The examiner opined that the Veteran’s sleep deprivation was initially caused by his PTSD, and that his sleep apnea is due to his sleep deprivation symptoms. Dr. P. noted that sleep deprivation is a significant contributing factor to sleep apnea. The examiner ruled out the Veteran’s obesity as a factor because he has been obese since long before the development of the sleep apnea symptoms. Dr. P. relied on her expertise, numerous studies, and scholarly articles in support of such. The Board ascribes great weight to the opinion of the specialist, and notes that the remaining evidence of record does not contradict or diminish the probative weight of this private opinion. Accordingly, the comparative weight of the evidence favors the claim, and service connection for sleep apnea is warranted. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hamed, Law Clerk