Citation Nr: 18153250 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-47 607 DATE: November 27, 2018 ORDER New and material evidence was received; the claim for entitlement for service connection for obstructive sleep apnea is reopened. Entitlement to service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. An April 2007 rating decision denied the Veteran’s claim for entitlement to service connection for obstructive sleep apnea. 2. Evidence received since the April 2007 rating decision includes medical opinions, from Dr. D.W., which address the etiology of the Veteran’s obstructive sleep apnea. This evidence was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s obstructive sleep apnea is related to his service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for obstructive sleep apnea has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably from July 1976 through December 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). New and material evidence was received; the claim for entitlement for service connection for obstructive sleep apnea is reopened. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105, 7266; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, an April 2007 rating decision denied the Veteran’s claim of entitlement to service connection for obstructive sleep apnea. This decision became final in April 2008. In February 2014, the Veteran filed a claim to reopen his previously denied claim for entitlement to service connection for obstructive sleep apnea. Evidence associated with the claims file after the April 2007 rating decision includes medical opinions, dated May 2014 and October 2016, from the Veteran’s private treating physician, Dr. D.W. In each opinion, Dr. D.W. addresses evidence from service treatment records of obstructive sleep apnea symptoms noted in service and the relation of these symptoms to the Veteran’s current disability of obstructive sleep apnea. The Board finds these medical records to be sufficient new and material evidence to reopen the Veteran’s claim. The evidence is material because it relates to unestablished facts necessary to establish the Veteran’s claim. Additionally, the evidence is neither cumulative nor redundant, as this evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Accordingly, for all the above reasons, the Veteran’s claim for obstructive sleep apnea is reopened. Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a). Entitlement to service connection for OSA is granted. The Veteran asserts that his obstructive sleep apnea is related to service. Service treatment records show no complaints or diagnoses of respiratory conditions, including obstructive sleep apnea, during the Veteran’s June 1976 entrance exam. However, in March 1998, service treatment records record a history of asthma and current pulmonary function tests showing restrictive airway results. At this appointment, the Veteran had chest imaging results showing a normal radiograph. August 1998 and November 1998 service treatment records showed continued treatment for respiratory conditions, including asthma and allergic rhinitis. By August 1999, chest imaging showed findings suggestive of chronic obstructive pulmonary disease. Relatedly, in October 1999, the Veteran’s wife reported observing him having difficulty breathing while sleeping. In November 1999, a sleep study test was performed with results consistent with snoring, but no evidence of obstructive sleep apnea. This report also included that the test could underestimate the Veteran’s true apnea-hypopnea index, due to positioning during the exam, and could not exclude upper airways syndrome. In February 2006, post-service treatment notes include a polysomnogram report confirming snoring and a moderate degree of obstructive sleep apnea. In May 2014, the Veteran’s treating physician, Dr. D.W., initiated correspondence stating that he reviewed the Veteran’s October 1999 sleep study. He further noted that although it showed a normal sleep-hypopnea index, the Veteran’s symptom of daytime sleepiness persisted up until his diagnosis of obstructive sleep apnea in 2006. He opined that a diagnosis of sleep apnea does not occur overnight, and suspected the Veteran had sleep apnea prior to his 2006 diagnosis. In October 2016, Dr. D.W., stated that after a review of the medical record, including service treatment records, he identified symptoms of daytime sleepiness and heavy snoring as early as October 1999. He again noted that the Veteran’s sleep study in October 1999 was also consistent with snoring and took notice that the interpreting physician could not exclude upper airway resistance syndrome. He further explained that upper airway resistance syndrome has been considered pre-sleep apnea and is currently accepted as a part of obstructive sleep apnea syndrome. Finally, Dr. D.W. noted that since treatment for obstructive sleep apnea, the Veteran has not had daytime sleepiness. He concluded that it appeared that the Veteran’s sleep disordered breathing began or was in its early phase in 1999. The Board is persuaded by the May 2014 and October 2016 medical opinions, which suggests that the Veteran’s obstructive sleep apnea is related to service and finds it to be the only probative medical opinion of record. Although the October 1999 sleep study found that there was no obstructive sleep apnea in-service, it also noted that the testing could be an underestimation of the Veteran’s true apnea-hypopnea index and could not preclude an upper airway resistance syndrome. Dr. D.W.’s opinions connects the Veteran’s symptomology that began in-service to his now existing disability. As the record now contains competent evidence of a current diagnosis that is linked (nexus) to the Veteran’s service, the Board grants service connection for obstructive sleep apnea. 38 C.F.R. § 3.303(a) H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.B. Mmeje, Associate Counsel