Citation Nr: 18151388 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-01 685 DATE: November 20, 2018 ORDER Entitlement to service connection for sleep apnea is denied. New and material evidence having not been submitted, the petition to reopen a claim of service connection for a kidney disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has sleep apnea due to a disease or injury in service. 2. The RO denied the Veteran’s claim of entitlement to service connection for a kidney disorder in a July 2007 rating decision. The Veteran was notified of the decision but he did not file an appeal, and the claim is final. 3. Evidence added to the record since the final June 2007 rating decision is either cumulative or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim for service connection for a kidney disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The June 2007 RO decision that denied the claim of entitlement to service connection for a kidney disorder is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. New and material evidence has not been received to reopen the claim for service connection for a kidney disorder. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to April 1980 and from January to July 1991. The Board notes that the Veteran’s service treatment records are not all associated with the claims file. The claims file includes a June 2011 VA Memorandum that documents efforts between VA and the National Personnel Records Center (NPRC) attempting to locate any additional service treatment records. Ultimately, it was determined that the Veteran’s records are unavailable. When, as here, at least a portion of the service records cannot be located, through no fault of the Veteran, VA has a “heightened” obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit- of-the-doubt doctrine. See e.g., O’Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board’s obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Service Connection 1. Entitlement to service connection for sleep apnea The Veteran contends that he suffers from sleep apnea that began during service as a result of exposure to environmental hazards during his time in the Gulf War and has continued since his separation. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea (see August 2011 VA examination), the preponderance of the evidence weighs against finding that the Veteran’s current sleep apnea is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran underwent a VA examination in August 2011 to determine the nature and etiology of the diagnosed sleep apnea. The VA examiner determined that it was less likely than not the currently diagnosed sleep apnea was incurred in or caused by the Veteran’s military service. As rationale for this opinion, the VA examiner reviewed the claims file, to include the available service treatment records that failed to show complaints of, treatment for, or a diagnosis of sleep apnea during service. The examiner stated that the Veteran’s sleep apnea is due to the congenital conditions of having a shot neck, small oral airway, and a large tongue. The examiner’s opinion is probative, because it is based on an accurate review of the claims file, consideration of the Veteran’s medical history, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no conflicting opinions of record. While the Veteran and his wife both believe the currently diagnosed sleep apnea is related to an in-service injury, event, or disease, they are not competent to provide a nexus opinion in this case, as the issue of causation in this case requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the August 2011 VA examination. Additionally, while the claims folder does show he has sought treatment for his sleep apnea throughout the appeal period, the claims file does not contain any medical records or etiological opinions linking the Veteran’s disorder to his active service. In sum, there is no evidence, medical or otherwise, to support the Veteran’s assertions. Finally, because obstructive sleep apnea is a diagnosed condition with a defined etiology, the provisions of 38 C.F.R. § 3.317 regarding undiagnosed illness are not applicable. Accordingly, service connection for sleep apnea is not warranted because the Veteran has not satisfied the nexus requirement of attributing the current disorder to his active service. See 38 C.F.R. § 3.303 (2017). In reaching the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C. § 5107 (b) (West 2012). The claim of entitlement to service connection is denied. New and Material Evidence 2. Kidney Disorder The Veteran’s claim of entitlement to service connection for a kidney disorder was previously denied in a June 2007 rating decision. The Veteran did not appeal this rating decision and, as such, the June 207 decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran filed a petition to reopen the claim in May 2011. The August 2011 rating decision currently on appeal continued the denial of this claim. In previously denying the Veteran’s claim for service connection for a kidney disorder, to include kidney failure, in the June 2007 rating decision, the RO considered the available service treatment records that failed to show in-service treatment or a diagnosis of a kidney disorder during service; VA and private treatment records dated through 2007 that show a diagnosis of chronic renal insufficiency and blood in the urine, and the lay statements in support of this claim. The RO denied this claim as there was no in-service injury or treatment for this disorder, or evidence to support a finding that this disorder is due to his military service, to include as due to exposure to environmental hazards during his military service. The evidence received since the last prior final denial of the claim in June 2007 relevant to this claim includes additional VA and private treatment records, an August 2011 VA examination, and additional statements by the Veteran and his wife in support of his claim. The August 2011 VA examination noted a diagnosis of chronic renal failure, which is cumulative of evidence previously submitted, but the VA examiner determined this disorder is not due to the Veteran’s military service, to include his service in the Gulf War. Given such, this evidence is not material as it does not attribute the Veteran’s kidney disorder to his military service. As there are no new contentions or evidence to support this claim, the evidence added to the record is either cumulative, or unrelated to the claim. As new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel