Citation Nr: 18153275 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-38 428 DATE: November 28, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran was denied entitlement to service connection for sleep apnea in a December 2011 rating decision. He did not appeal or submit new evidence within the requisite time period, rendering the December 2011 rating decision final. 2. New and material evidence has been submitted to reopen a claim for entitlement to service connection for sleep apnea. CONCLUSIONS OF LAW 1. The December 2011 rating decision denying entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The additional evidence received since the December 2011 rating decision is new and material and the claim for entitlement to service connection for sleep apnea is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1994 to March 1999. He appeals the February 2013 rating decision denying service connection for sleep apnea, to include as secondary to service-connected disabilities. 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for sleep apnea. The Veteran submitted a claim for sleep apnea in May 2011. In December 2011, the claim was denied because the record did not contain a current diagnosis of sleep apnea and the evidence did not show sleep apnea related to the Veteran’s service-connected disabilities or to exposure to contaminated water at Camp Lejeune. A claim that is adjudicated by the Department of Veterans Affairs (VA) is considered finally adjudicated upon expiration of the time to file a notice of disagreement (NOD). 38 C.F.R. § 3.160(d). The time period to file a NOD is one year from the date that the Agency of Original Jurisdiction (AOJ) mails notice of the determination. 38 C.F.R. § 20.302(a). A veteran may reopen a finally adjudicated claim by submitting new and material evidence. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The Board is not bound by the AOJ’s decision to reopen a finally adjudicated claim based on new and material evidence and must determine whether reopening is appropriate. Barnett v. Brown, 8 Vet. App. 1 (1995). A timely NOD was not filed and the denial of the Veteran’s sleep apnea claim became final. The Veteran requested to reopen the claim in September 2012. The Veteran submitted additional evidence consisting of a sleep apnea diagnosis by a VA clinician from August 2011. The AOJ then readjudicated the sleep apnea claim, again denying service connection for the condition. The sleep apnea diagnosis submitted by the Veteran raises a reasonable possibility of substantiating his claim because a veteran is ineligible for VA compensation if there is no showing of a current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The VA clinician opines in the August 2011 sleep study that the Veteran’s condition is consistent with moderate obstructive sleep apnea syndrome. Because one of the bases of the prior final denial was lack of a sleep apnea diagnosis, the newly-submitted evidence is sufficient to reopen the claim. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities is remanded. The AOJ readjudicated the sleep apnea claim and confirmed the previous denial of service connection for sleep apnea in the February 2013 rating decision. The AOJ reasoned that the evidence failed to show the condition was related to the Veteran’s service or to any of his service-connected disabilities. The Veteran filed a timely NOD in April 2013. The NOD included additional evidence in the form of reference to numerous medical authorities alleging a correlation between posttraumatic stress disorder (PTSD) and sleep apnea. The Veteran is service-connected for PTSD with alcohol dependency. An exam was ordered by the AOJ in December of 2015 to obtain a medical opinion regarding the etiology of the Veteran’s obstructive sleep apnea (OSA). The VA clinician was asked to opine as to whether the Veteran’s OSA was at least as likely as not proximately due to or the result of PTSD with alcohol dependency. The clinician was directed to review the claims file, to include the results of the sleep study in the record and the information introduced by the Veteran. The clinician was also asked to opine as to whether the Veteran’s OSA was at least as likely as not aggravated beyond its natural progression by his service-connected PTSD with alcohol dependence. A medical opinion was issued by Dr. L.T. in December 2015. Dr. L.T. opined that the Veteran’s OSA was less likely than not incurred in or caused by his service connected PTSD. Dr. L.T. further opined that there is no documentation that the Veteran’s sleep apnea was aggravated beyond its normal progression by PTSD. Dr. L.T. explained that sleep apnea is an obstruction to outflow of air during sleep and that PTSD is a mental problem. Dr. L.T. further explained that mental problems do not cause obstruction to outflow of air during sleep. The AOJ issued an SOC in June 2016 confirming and continuing the denial of service connection for sleep apnea, relying upon the opinion provided by Dr. L.T. The Veteran perfected his timely appeal in August 2016. Any additional records of VA treatment generated since April 2016 must be obtained as they are necessary to properly adjudicate the Veteran’s claim. The Veteran states in his appeal that VA decided his case incorrectly because his sleep apnea is caused or aggravated by the medications he takes for several of his service connected disabilities. The Veteran notes that he takes 17 medications for his disabilities, 12 of which indicate weight gain as a known side effect. The Veteran asserts that his reduced mobility in combination with the medications has resulted in significant weight gain. The Veteran infers that the weight gain further aggravates his sleep apnea. The Veteran should be afforded a VA examination to determine if there is a plausible relationship between the Veteran’s service connected disabilities and his sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records relevant to the Veteran’s claimed sleep apnea disability, including updated relevant treatment records from the Atlanta VAMC. 2. After the above has been completed, and after obtaining any additional evidence deemed necessary, obtain an addendum opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s sleep apnea. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. If the reviewing clinician determines that an examination of the Veteran is needed to answer the questions below, such should be accomplished. The reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s sleep apnea had its onset in service or is related to an in-service event, injury or disease, to include, but not limited to, possible exposure to contaminated drinking water at Camp Lejeune? Is it at least as likely as not that the Veteran’s sleep apnea is caused by his service connected disabilities or medications used to treat his service-connected disabilities? Is it at least as likely as not that the Veteran’s sleep apnea is aggravated beyond the normal course of the condition by his service connected disabilities or medications used to treat his service-connected disabilities? Is it at least as likely as not that the Veteran’s service-connected disabilities, or medications used to treat his service-connected disabilities, led to weight gain, which in turn caused or aggravated his sleep apnea? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In doing so, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. All opinions must be fully explained and supported by a rationale. 3. After the above development has been completed, and after obtaining any additional evidence deemed necessary, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.J. Ballinger, Law Clerk