Citation Nr: 18152255 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-38 346 DATE: November 21, 2018 ORDER The application to reopen the claim of service connection for service connection for a dental disability is denied. The application to reopen the claim of service connection for erectile dysfunction, to include as due to exposure to herbicide is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. Evidence received since the December 1979 final rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a dental disability, and does not raise a reasonable possibility of substantiating the claim. 2. Evidence received since the June 2010 final rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for erectile dysfunction, and does not raise a reasonable possibility of substantiating the claim. 3. Obstructive sleep apnea was not manifest in service and is not attributable to service. 4. Obstructive sleep apnea is not shown to be caused or aggravated beyond its natural progression by a service-connected disease or injury. CONCLUSIONS OF LAW 1. Evidence received since the December 1979 final rating decision in relation to the Veteran’s claim for entitlement to service connection for a dental disability is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 2. Evidence received since the June 2010 final rating decision in relation to the Veteran’s claim for entitlement to service connection for erectile dysfunction is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 3. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. Obstructive sleep apnea is not proximately caused or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as a seaman in the U.S. Navy from July 1969 to April 1971 with duty aboard an aircraft carrier. New and Material Evidence 1. Whether New and Material Evidence has been Submitted to Reopen a Claim for Service Connection for a Dental Disability 2. Whether New and Material Evidence has been Submitted to Reopen a Claim for Service Connection for Erectile Dysfunction, to include as due to Exposure to Herbicides In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary’s duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. The Veteran was denied service connection for a dental disability in August 1979. He was denied entitlement to service connection for erectile dysfunction, to include as due to exposure to herbicides in June 2010. At the time of the December 1979 rating decision, the Veteran’s contention was that he slipped and fell while in service, causing trauma to his teeth. See September 1979 correspondence. His claim was denied because there was no evidence of trauma. A single treatment record in January 1970 showed care for a fall that caused an injury to the back and leg that was found to be acute. At the time of the June 2010 rating decision, the Veteran’s contention was that he was exposed to Agent Orange while in service, which caused his current erectile dysfunction. His claim was denied because the RO determined that he had not submitted any new and material evidence, since his original denial in November 2009. The Veteran was denied entitlement to service connection for erectile dysfunction in November 2009 because the RO determined that the evidence failed to show a relationship between the Veteran’s service and his erectile dysfunction, and there was no indication that the Veteran was exposed to herbicides. The Veteran submitted correspondence to reopen his claim for a dental disability in January 2011. Since December 1979, the only evidence pertaining to a dental disability added to the Veteran’s claims file is medical records reflecting treatment for dental work. Therefore, evidence added to the record since the time of the December 1979 rating decision fails to show that the Veteran received treatment for or complained of any trauma to his mouth stemming from service, and does not indicate that there is any relationship between a dental disability and service. A claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). Thus, in the current case, adjudication of the Veteran’s claim for service connection must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. Douglas v. Derwinski, 2 Vet. App. 435 (1992). The criteria for eligibility for dental treatment is provided in 38 C.F.R. § 17.161 (2017). The Veteran has not provided any evidence to show that he meets the requirements of this regulation. The Veteran submitted correspondence to reopen his claim for erectile dysfunction in February 2011. Evidence added to the record since the time of the June 2010 rating decision shows continued treatment for erectile dysfunction, but fails to show that the Veteran was exposed to herbicides or that there is a relationship between the Veteran’s erectile dysfunction and his service. While the Veteran’s ongoing contentions are noted, they are cumulative and thus not new and material. Thus, the Board concludes that the evidence added to the record since the December 1979 and June 2010 rating decisions is not new and material. In summary, the defects existing at the time of the 1979 and 2010 rating decisions have not been cured, and the claim of entitlement to service connection for a dental disability and erectile dysfunction may not be reopened. Service Connection Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110. To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Obstructive sleep apnea is not identified as “chronic” diseases under 38 U.S.C §1101 and 38 C.F.R. § 3.309(a). As a result, the provisions of 38 C.F.R. 3.303(b) are not applicable. Service connection is warranted on a secondary basis for “disability which is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a). Secondary service connection is also warranted for “[a]ny increase in severity of a nonservice-connected disease or injury 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). The Board notes that the Veteran is not asserting that his claimed disabilities resulted from him engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154(b) are not applicable. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App.453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to Service Connection for Sleep Apnea The Veteran contends that he is entitled to service connection for sleep apnea, as caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). The Veteran’s STRs are associated with the claims file. There is no complaint of or treatment for any sleeping or apnea disability. The Veteran’s March 1971 separation examination does not note any sleeping disorders, and the Veteran’s mouth and throat were determined to be normal. Medical records do not reflect complaints of or treatment for a sleeping issue until March 2004. The Veteran underwent a sleep study in March 2004 and was diagnosed with sleep apnea. See July 2004 VA treatment records. September 2004 VA treatment records reflect that the Veteran reported good results using the CPAP to treat his sleep apnea. January 2013 VA treatment records reflect that the Veteran’s CPAP was adjusted and he was sleeping better. The Veteran underwent a VA examination in June 2015. Following an examination of the Veteran and review of the claims file, the examiner determined that the Veteran’s sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected disabilities. He explained that sleep apnea is a mechanical obstruction of the upper airway and is not at all related to PTSD. He went on to state that obstructive sleep apnea occurs when the muscles in the back of the throat relax, thus narrowing the airway and decreasing the amount of air taken into the lungs. The decreased oxygen level in the blood then triggers the respiratory center in the brain to awake the patient to take a breath. These frequent interruptions of sleep cause tiredness the next day. Air passing through the narrowing in the throat can cause a snoring sound. The Veteran also submitted a July 2016 Sleep Apnea Disability Benefit Questionnaire (DBQ) completed by Dr. H.S. The DBQ noted that the Veteran had a diagnosis of obstructive sleep apnea and depressive disorder, he did not mention the Veteran’s service-connected PTSD. On the DBQ, Dr. H.S. stated that “[b]ased on my experience, interview with the Veteran, review of the medical records, and supporting medical literature, I feel it is as likely as not the Veteran[’]s depressive disorder aided in the development and permanently aggravates his [obstructive sleep apnea].” As the physician’s address is listed in a state distant from the Veteran’s residence, any interview was likely electronic. Other than reference to a sleep study that diagnosed OSA and a November 2010 VA examination discussing depression, the physician provided no discussion of this Veteran’s medical history or physical presentation. Dr. H.S. also submitted a separate page with additional discussion. He stated, with a footnote citation to a submitted 2005 medical journal article, that: Research has shown that psychiatric disorders are commonly associated with [obstructive sleep apnea]. A recent study found that subjects with depression compared with non-depressed controls have a higher prevalence of sleep apnea diagnosis…Another study found that with CPAP treatment, both [obstructive sleep apnea] and psychiatric symptoms decreased providing further evidence of the co-morbidity of these conditions. Based on my experience, interview with the Veteran, review of the medical records, and supporting literature, I feel it is as likely as not the Veteran[’]s depressive disorder aided in the development and permanently aggravates his [obstructive sleep apnea]. The private opinion did not address the June 2015 VA examination report. The Board affords the July 2016 private opinion little probative value. This opinion was provided by a doctor following interview with the Veteran and review of medical records but no physical examination. The opinion is based entirely on the findings of the researchers who, based on their study of VHA data, find evidence of co-morbidity between patients with OSA and several mental health disorders. Except for the quotation above, most of the research addresses those patients with OSA and the coincidence of mental health disorders and not the reverse. There is no discussion of the physiological factors. Moreover, the opinion regarding the effect of treatment shows that treatment for OSA reduces the severity of mental health symptoms but not the reverse as would be relevant to aggravation of OSA by depression. It is unclear in how Dr. H.S.’s citation of the 2005 article supports his opinion. Dr. H.S.’s only explanation of how the Veteran’s depression might affect his sleep apnea was that it might cause him to take his CPAP mask off at night; there is no explanation of how this study of the general correlation between certain psychiatric disorders and sleep apnea specifically applies in the Veteran’s case. The opinion relies almost entirely on the Veteran’s statements to Dr. H.S. that he would take his CPAP mask off when he felt like he was choking, which would result in exacerbated sleeping problems. However, nowhere else in the record including in the treatment of the Veteran’s sleep apnea has there been noted to be any problem with satisfactory use of the Veteran’s CPAP mask, and resulting exacerbation of his sleeping problems, due to repeatedly taking off the mask at night. In fact, as noted above, the Veteran’s medical records reflect that he had good results using the CPAP machine. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). Furthermore, Dr. H.S.’s bare assertion that the Veteran’s depressive disorder “more likely than not aided in the development of, and permanently aggravates,” his obstructive sleep apnea is unclear and not explained. Again, the only explanation Dr. H.S. gave of how the Veteran’s depression might affect his sleep apnea is that it caused him to occasionally take his CPAP mask off, which exacerbated his sleepiness during the day. Also, there is no explanation as to how the Veteran’s depression “permanently aggravates” his obstructive sleep apnea, given that, if the Veteran were to stop taking off his mask, the exacerbated sleepiness effects would presumably stop, in view of Dr. H.S.’s report. No other effects, pathology, or problems of the Veteran’s sleep apnea were identified by Dr. H.S. as being a result of his depression. The physician ignored and did not discuss other possibly relevant physical characteristics indicated in the records such as body weight. The Board affords the greatest probative weight to the June 2015 VA examination and opinion. The examiner performed and in-person examination of the Veteran and thoroughly explained the etiology of sleep apnea in his determination that the condition was less likely than not caused or aggravated by the Veteran’s PTSD. Additionally, the Board finds no basis for granting entitlement to service connection on a direct basis. There is no medical or other evidence of record suggesting such an association, and symptom onset began multiple decades after separation from service. Therefore, a preponderance of the evidence is against a finding that sleep apnea began during service, is caused or aggravated by a service-connected disability, or is related to service in any other way. Accordingly, service connection for sleep apnea must be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel