Citation Nr: 18150184 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-09 777 DATE: November 14, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT A February 2013 rating decision which denied entitlement to service connection for sleep apnea is final; evidence has been received since that decision which relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for sleep apnea. CONCLUSION OF LAW The February 2013 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1966 to October 1986, including service in the Republic of Vietnam. The Veteran submitted a claim in April 2012 stating that he had problems sleeping and loud snoring. In May 2012, he wrote that he had this problem for a number of years and had no idea when it started. He wrote that his wife had to wake him on many occasions because he had stopped breathing. In October 2012, he submitted a statement that his first wife, who died in 1996, had told him that he would snore and stop breathing in his sleep when he first got back from Vietnam. The Veteran’s second wife submitted a statement in October 2012 stating that her husband has loud snoring and that she has had to wake him when he stopped breathing, to be sure he was still alive. She reported that working as a registered nurse and witnessing nursing home patients with sleep apnea symptoms that she believed were similar to those demonstrated by her husband. A November 2012 sleep study was performed, and the Veteran was diagnosed with severe obstructive sleep apnea. Entitlement to service connection for sleep apnea was denied in a February 2013 rating decision on the basis that the evidence did not show any event, disease, or injury in service; he was not treated for this condition in service; there was no continuity of symptoms since service; and the first treatment was 26 years after separation from service. The Veteran did not submit a notice of disagreement or new and material evidence within one year of this decision, and it is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. The Veteran’s submitted correspondence in June 2014 stating that he wished to appeal VA’s decision and that he had no way of knowing that his sleep apnea was diagnosed while on active duty. This correspondence was sent after the one-year deadline for filing a notice of disagreement had passed. 38 C.F.R. § 20.302. The Veteran was notified in March 2015 that the June 2014 correspondence was not a timely notice of disagreement, but it was accepted as a new claim of entitlement to service connection for sleep apnea. Entitlement to service connection for sleep apnea was again denied in an August 2017 rating decision. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. At the time of the prior denial, no evidence had been received regarding a possible relationship between the Veteran’s sleep apnea and a service-connected disability. The Veteran was granted entitlement to service connection for posttraumatic stress disorder in April 2010, and he has since submitted medical articles which indicate that there is a relationship between veterans with anxiety disorders or posttraumatic stress disorder and the development of sleep apnea. In June 2017, the Veteran submitted an article which discussed the high incidence of sleep apnea in people with anxiety disorders, including posttraumatic stress disorder, and in November 2017 he submitted an article stating that the severity of posttraumatic stress disorder was linked to higher risk of sleep apnea in veterans. The Veteran also attended a VA examination for sleep apnea in July 2017. While the examiner did not find that the appellant’s sleep apnea was at least as likely as not related due to his posttraumatic stress disorder, he did acknowledge that obstructive sleep apnea may be more common in people with posttraumatic stress disorder. While this evidence does not actually demonstrate that the Veteran’s sleep apnea has been caused or aggravated by his posttraumatic stress disorder, new and material evidence necessary to reopen a claim must merely raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board finds that new evidence has been received which raises the possibility that the Veteran’s sleep apnea has been caused or is aggravated by his posttraumatic stress disorder. Therefore, evidence has been obtained since the last prior denial which relates to an unestablished element necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. The evidence is new and material, and the claim of entitlement to service connection for sleep apnea is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND Sleep Apnea The Veteran contends that he has sleep apnea which either began during his military service, or has been caused or is aggravated by his service-connected posttraumatic stress disorder. At a June 2018 Board hearing, the Veteran testified that when he returned from Vietnam in 1968, he had sleeping problems, he would nap or fall asleep during the day, and his wife would wake him because she noticed he was gasping for air. He said that he had problems with feeling sleepy and falling asleep all throughout his service. The Veteran submitted a notice of disagreement in August 2017 and again reported that his deceased wife had to wake him to see if he was still breathing during the night after he returned from Vietnam in 1968. He stated that his current wife also observed similar symptoms, and that these symptoms have been continuous from the time of his service to the present. A VA examination was held in July 2017, and the examiner concluded that the Veteran’s sleep apnea was less likely than not proximately due to posttraumatic stress disorder, because sleep apnea was a physical abnormality of the upper airway and not a mental health disorder, and that while sleep apnea may be more common in people with posttraumatic stress disorder, this did not imply causality. The examiner noted that the Veteran was already 65 when he was diagnosed with sleep apnea in 2012. The Board finds that an additional medical opinion is necessary prior to further adjudication of this issue. The Veteran has asserted, on several occasions, that his first wife told him soon after he returned from Vietnam in 1968 that he had loud snoring and interrupted breathing while he slept. He has testified that these symptoms have been continuous since that time. The Board therefore requests that these lay statements be considered by the examiner, who should opine on whether this indicates that the Veteran’s sleep apnea may have had its onset during his service. If there is reason to doubt the credibility of the appellant’s report the examiner should explain why. Additionally, while the prior examiner clearly explained why he did not feel that the Veteran’s posttraumatic stress disorder had caused his sleep apnea, the examiner must discuss whether the claimant’s psychiatric disorder has aggravated his sleep apnea. The Board notes that the appellant has asserted that posttraumatic stress disorder greatly disrupts his sleeping and has for several decades, and both of the Veteran’s VA psychiatric examinations noted that his posttraumatic stress disorder caused chronic sleep impairment. Hypertension The Veteran also claims entitlement to service connection for hypertension, which he contends is caused or aggravated by his service-connected diabetes mellitus. The Veteran testified at a June 2018 Board hearing that his hypertension was diagnosed at around the same time that he was diagnosed with diabetes. He stated that he has been told that the hypertension was related to his diabetes mellitus and exposure to Agent Orange. The record currently contains several contradictory medical opinions regarding the relationship between the Veteran’s hypertension and his diabetes mellitus. Unfortunately, none of them contain an adequate rationale to allow the Board to adequately weigh these differing opinions. The February 2007 VA examiner wrote that the Veteran’s hypertension was diagnosed prior to his diagnosis of diabetes mellitus, and was therefore not caused by diabetes mellitus. It is unclear, however, whether this is the case, as the Veteran has asserted that these conditions either were diagnosed around the same time or that his diabetes diagnosis preceded his hypertension diagnosis, and the Veteran’s complete medical records prior to 2004 have not been obtained in order to establish whether this is the case. An August 2011 VA examiner noted on examination that hypertension was a condition that was at least as likely as not due to diabetes mellitus but there was no accompanying explanation. A December 2012 VA examiner indicated that hypertension was as likely as not aggravated by diabetes, but in a May 2013 addendum, he retracted that opinion because the Veteran had normal renal function. Dr. S.C. submitted a letter in July 2013 stating that it was more likely than not that the Veteran’s diagnosis of hypertension was related to his diabetes mellitus condition. No further rationale was given. The Board remands this issue to obtain a new medical examination and opinion which fully addresses the Veteran’s assertions and provides an adequate, thorough rationale regarding addressing the Veteran’s hypertension has been caused or aggravated by his diabetes mellitus or any other service connected disorder to include posttraumatic stress disorder. The Veteran’s medical records show that he has been regularly treated for systemic hypertension and diabetes mellitus throughout the appeal period. He has been diagnosed with diabetes mellitus and hypertension since at least 2004, and reported in 2007 that he was diagnosed with hypertension in 2003. Because the Veteran’s medical treatment records prior to 2004 have not been obtained, an attempt to obtain all medical records prior to 2004 should be made. The matters are REMANDED for the following action: 1. Obtain all available records from the VA San Diego Healthcare System since July 2017 and from the Naval Medical Center San Diego (through TriCare) prior to December 2004 and after August 2006. If any such records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, obtain a medical opinion from a VA sleep specialist addressing the etiology of the Veteran’s sleep apnea. The sleep specialist must be provided access to all files in the Veteran’s VBMS and Virtual VA/Legacy files, and the physician sleep specialist must specify in the report that these files have been reviewed. Following a review of the files, the sleep specialist is to address the following: Is it at least as likely as not (is there a 50/50 chance) that the Veteran’s sleep apnea had its onset during or is otherwise related to any injury or disease in service? Please specifically discuss the Veteran’s reports that his first wife heard him snore loudly and stop breathing in his sleep after he came home from Vietnam in 1968, and discuss whether this indicates that his sleep apnea may have had its onset at that time. Is it at least as likely as not that the Veteran’s sleep apnea was (i) caused or (ii) is aggravated (i.e., worsened beyond the natural progression) by the Veteran’s service-connected disabilities, which includes posttraumatic stress disorder, diabetes mellitus, and bilateral upper and lower extremity peripheral neuropathy? Specifically address the Veteran’s assertion that his posttraumatic stress disorder disrupts his sleep and has aggravated his sleep apnea, as well as the articles submitted by the Veteran which indicate that there is a relationship between anxiety disorders and posttraumatic stress disorder and the development of sleep apnea. If the physician sleep specialist has any reason to doubt the appellant’s self reported history the examiner must explain why. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. Schedule the Veteran for a VA examination to address the nature and etiology of his hypertension. The examiner must be provided access to all files in the Veteran’s VBMS and Virtual VA/Legacy files, and must specify in the report that these files have been reviewed. Following a physical examination, any indicated tests, and review of the files, please address the following: Is it at least as likely as not (is there a 50/50 chance) that the Veteran’s hypertension had its onset during or was otherwise related to his service, including due to his exposure to Agent Orange and other herbicide agents while serving in Vietnam? Is it at least as likely as not that the Veteran’s hypertension was (i) caused or (ii) is aggravated (i.e., worsened beyond the natural progression) by the Veteran’s service-connected disabilities, which include posttraumatic stress disorder, diabetes mellitus, and bilateral upper and lower extremity peripheral neuropathy? Specifically address the Veteran’s assertion that his diabetes mellitus caused or aggravated his hypertension. Consider the July 2013 letter from Dr. S.C. stating that it was more likely than not that the Veteran’s hypertension was related to his diabetes mellitus and the August 2011 VA examiner’s notation that hypertension was a condition that was at least as likely as not due to diabetes mellitus. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel