Citation Nr: 18153764 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-40 466 DATE: November 28, 2018 ORDER 1. The application to reopen the claim of entitlement to service connection for sleep apnea is granted. 2. The reopened claim of entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran did not appeal or submit new and material evidence within one year of the July 2014 rating decision that denied service connection for sleep apnea. 2. Evidence associated with the claims file after one year of the July 2014 rating decision relates to an unestablished fact, is not cumulative or redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim to service connection for sleep apnea. 3. The most probative evidence of record establishes that sleep apnea was not manifested during the Veteran’s active duty service, is not related to active service, and is not due to or aggravated by a service-connected disability, to include posttraumatic stress disorder. CONCLUSIONS OF LAW 1. The July 2014 rating decision that denied service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. After the final July 2014 rating decision, new and material evidence has been received and requires reopening of the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1997 to June 2000, from October 2001 to September 2002, and from May 2003 to April 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO). 1. Factual and Procedural Background The Veteran is service connected: (1) for posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), lumbar spine sprain with scoliosis and intervertebral disc syndrome, subacromial bursitis of the left shoulder, recurrent right ankle sprain, degenerative disc disease, patellofemoral syndrome in the left knee, bilateral dry eye syndrome, viral pneumonia, and tinnitus, effective April 2011; (2) effective June 2011, for migraine headaches, instability of the left knee, and radiculopathy of the left lower extremity; and (3) effective November 2014, for erectile dysfunction. The Veteran also sought service connection for other conditions, including sleep apnea, with which he was diagnosed in October 2013. In February 2014, the Veteran applied for disability compensation for sleep apnea. In July 2014, the RO denied service connection for that condition. In December 2015, he submitted a new disability compensation claim for sleep apnea as secondary service connected to his PTSD. In December 2015, the RO reopened his claim and denied service connection for sleep apnea claimed as secondary service connected. In January 2016, he filed a notice of disagreement. In July 2016, the RO issue a statement of the case (SOC). In August 2016, the Veteran submitted additional evidence and filed a substantive appeal. In February 2017, a VA examiner found that it was less likely than not that his sleep apnea was caused by PTSD. In July 2017, the RO issued a supplemental SOC. 2. Claim to Reopen If an RO denies a veteran’s claim, and the veteran does not initiate an appeal of that rating decision or submit new and material evidence with respect to the claim within one year of the decision, the decision becomes final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In this case, the Veteran did not initiate an appeal of the July 2014 rating decision within one year. Thus, the July 2014 rating decision became final unless the RO received new and material evidence during that period. New evidence means evidence not previously submitted to VA. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Thus, new and material evidence should raise a reasonable possibility of substantiating the claim, and can be neither cumulative nor redundant of the evidence of record at the time of the final disallowance of the claim. Here, evidence received within one year of the July 2014 rating decision included: (1) the Veteran’s October 2009 screening report, his November 2009 intake interview, and an excerpt from his April 2010 neuropsychological examination, all recording his reports of insomnia; and (2) his November 2014 Disability Benefits Questionnaire (DBQ), which reflected (a) his reports of waking up tired and that, during his April 2010 neuropsychological examination, he was recommended to undergo a sleep study, (b) a summary of his medical history, and (c) his wife’s reports that he snored. The Veteran’s service treatment records (STRs) received in September 2010 offered the same information. Since the evidence received prior to and within one year of the July 2014 rating decision was cumulative or redundant, the July 2014 rating decision is final. A presentment of new and material evidence, however, requires reopening of a finally disallowed claim. Here, the evidence of record received after the final disallowance of the Veteran’s claim include: (1) his medical record generated after July 2015; (2) a December 2015 statement from the Veteran’s treating medical professional; (3) two medical articles submitted in support of his claim; and (4) an August 2016 lay statement from his wife. These submissions constitute new and material evidence because: (1) they were newly associated with the record; (2) relate to whether the Veteran suffered an in-service injury or disease causing his sleep apnea, or had his sleep apnea aggravated beyond its normal progression by a service-connected disease or injury; and (3) raise a reasonable possibility of substantiating his claim. Therefore, a reopening of this case is required. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). For the purposes of the reopening, the evidence received after the July 2014 rating decision became final is deemed credible. See id. 3. Service Connection – Sleep Apnea A. Sleep Apnea At the outset, the Board finds it helpful to note that sleep apnea differs from such conditions as sleep impairment, sleep disturbance, insomnia, having nightmares, and snoring. Sleep apnea is manifested by stoppages of breathing during sleep due to a partial or complete closure of the throat that, in turn, causes gasping for air. See https://ghr.nlm.nih.gov/condition/obstructive-sleep-apnea. The Veteran’s February 2017 VA examiner addressed this point, stating: Obstructive sleep apnea ([OSA]) occurs due to passive collapse of the oro- and/or nasopharynx during inspiration on while asleep. It is caused by anatomical abnormalities (obesity, redundant tissue in the soft palate, enlarged tonsils or uvula, low soft palate, large or posteriorly located tongue), as well as neuromuscular disorders, and alcohol or other sedative use before bedtime. Snoring and daytime sleepiness are the most common presenting complaints of OSA. Additional symptoms and signs include restless sleep, periods of silence terminated by loud snoring, fatigue, poor concentration, nocturnal angina, and awakening with a sensation of choking, gasping, or smothering. B. Claims Raised in Error In his appellant’s brief, the Veteran, through his representative, cited to § 3.309(a), the chronic disease provision. However, because OSA is not a chronic disease listed in the regulation, the Veteran’s reliance on § 3.309 was misplaced. Further, the Veteran’s substantive appeal cited to § 1154 in light of his combat experience. Section 1154, however, requires a combat veteran to: (1) establish by competent evidence a relationship between his current disability and an in-service injury, disease, or event, see Collette v. Brown, 82 F.3d 389, 394 (1996); and (2) submit evidence of symptomatic manifestations during or proximate to combat, consistent with the circumstances of service, Caluza v. Brown, 7 Vet. App. 498, 512 (1995). Because sleeping is not consistent with the circumstances of combat, the Veteran’s reliance on § 1154 is similarly misplaced. C. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated in service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in service disease or injury and the current disability. The Board gives a claimant the benefit of the doubt on any issue material to his claim when evidence is in equipoise, but determines the competence and credibility of the evidence, and weighs the probative value of the evidence, including lay statements, against the entirety of the record. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. Direct Service Connection In his substantive appeal, the Veteran asserts that his OSA is a result of him being struck by two improvised explosive devices (IEDs) in Afghanistan. The evidence of record, however, does not show that the injuries the Veteran suffered due to the IED strikes were related to his tonsils, uvula, tongue, or soft palate tissue. Further, while his wife, in her lay statement, asserts that the Veteran gasped for air in his sleep while in service, this assertion is inconsistent with the evidence of record. The Veteran’s medical records, prepared by professionals who cited to the Veteran’s wife, reflected her reports that he snored and had insomnia and sporadic sleep in service. The record does not reflect her report that he gasped for air or had breathing stoppages in his sleep. Moreover, the Veteran did not make such an assertion in any document he filed in this matter, including his substantive appeal and the appellant’s brief. Therefore, the Board finds that the preponderance of the evidence is against finding that he gasped for air or had breathing stoppages in his sleep while in service. To establish the nexus element, the Veteran provided the December 2015 opinion from his treating medical practitioner. The opinion: (1) offers a conclusion that the Veteran’s OSA is more likely than not service connected because of “the timing of symptoms in regard to his injuries”; and (2) notes that the April 2010 neurologist recommended the Veteran to undergo a sleep study. However, the evidence of record indicates that the neurologist’s recommendation was based on her concerns with the Veteran’s post-injury cognitive functions. Specifically, she recommended the Veteran to: (1) return to school to reduce his memory difficulties; (2) receive psychotherapy for his PTSD and depression to reduce his cognitive difficulties; (3) use compensatory strategies to further reduce his cognitive difficulties; and (4) determine if he would benefit from a sleep study in order to restore his sleep, alleviate his cognitive difficulties, and rule out the possibility of a sleep disorder. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Further, a probative medical opinion must be based on accurate data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the December 2015 opinion of the Veteran’s treating medical practitioner is of little probative value, since it is: (1) reduced to an obscure reference to his injuries unrelated to the Veteran’s tonsils, uvula, soft palate tissue, tongue, etc.; and (2) cites the April 2010 neurologist’s recommendation that focused on the Veteran’s cognitive difficulties. The Board also notes its concern with the fact that, in November 2014, the Veteran’s treating medical practitioner provided him with a legal advice as to how to file a VA disability compensation claim more advantageously. The evidence shows that, in July and October 2012, and in February, May and August 2013, the Veteran reported snoring but was not diagnosed with OSA. He was deemed an appropriate candidate for a polysomnogram only in August 2013, and diagnosed with OSA in October 2013, i.e., two and a half years after his separation from service. Further, his OSA diagnosis was accompanied by the following clarification: While several obstructive hypopneas and apneas were noted (especially during supine), these did not reach a level of clinical significance necessary to establish a diagnosis of sleep apnea. Nevertheless, there were some indications of at least mildly increased upper airway resistance during sleep (including airflow decrements associated with EEG arousals, and periods of paradoxical breathing, and snoring). In light of: (1) a lack of competent evidence establishing a triggering disease or injury in service; (2) the two-and-a-half-year period between the Veteran’s separation from service and his mild OSA diagnosis; (2) his STRs that reflect no diagnosis of or treatment for OSA; and (3) a lack of probative medical opinion establishing a nexus between his OSA and active service, the preponderance of evidence is against finding direct service connection for OSA, and the benefit of the doubt doctrine is inapplicable. E. Secondary Service Connection and the Adequacy of the Examination Service connection may also be established on a secondary basis for a disability that is proximately caused or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. at 448 (1995). In his December 2015 disability compensation form and the appellant’s brief, the Veteran asserted that his OSA was caused by his service-connected PTSD. In support of this contention, he submitted two articles suggesting an association between PTSD, TBI and OSA. The February 2017 VA examiner addressed these contentions. She opined that PTSD is often characterized by intrusive thoughts and nightmares, and can cause sleep disturbances, but these disturbances are associated with a change in sleep efficiency, sleep latency, and rapid eye movement, not with hypopnea and obstructive symptoms. She also noted that sleep-wake disturbances are among the most prevalent and persistent consequences of TBI. She, however, opined, that the Veteran’s PTSD or TBI did not cause his OSA; in support of her conclusion she pointed out that no peer reviewed study cited TBI or PTSD as a direct cause of OSA, even though OSA was associated with increase prevalence in TBI patients. In his appellant’s brief, the Veteran challenges the adequacy of the February 2017 VA examiner report on the grounds that she did not address the December 2015 opinion from his treating medical practitioner or the lay statement from his wife. An adequate medical opinion should consist of a thorough review of the claims file and a discussion of the relevant evidence (including the disability in question), a consideration of the lay contentions of the veteran, and clear conclusions with a reasoned supporting rationale. Nieves-Rodriguez, 22 Vet. App. at 301. A medical opinion does not have to be perfect; and there is no requirement that a medical examiner comment on every piece of evidence in a claims file. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). The law imposes no reasons-or-bases requirement on examiners. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Where a medical opinion is lacking in detail, the Board is permitted to draw inferences based on the overall report, so long as the inference does not result in a medical determination. Id. at 294. Here, the February 2017 VA examiner reviewed the Veteran’s claims folder and medical history, considered his report of symptoms before rendering her medical opinion, and cited to the facts and medical references in support of her findings. Given the little probative value of the December 2015 opinion of the Veteran’s treating medical practitioner and the lack of credibility of the Veteran’s wife’s lay statement that he was gasping for air in his sleep while in service, the Board infers that the February 2017 VA examiner did not find these submissions sufficiently important for the purposes of her analysis. The Board finds the February 2017 VA examiner’s medical opinion adequate and of great probative weight. See Prejean, 13 Vet. App. at 448-49. The Board further finds that the articles submitted by the Veteran in support of his claim are insufficient to establish the required medical nexus between his OSA and PTSD. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1). However, treatise evidence must not simply provide generic statements that are not relevant to the veteran’s claim. Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, “standing alone,” must discuss generic relationships with such a degree of certainty that, under the facts of a specific case, there is at least plausible causality based upon objective facts, not an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314, 317 (1998). The Board finds that the articles submitted by the Veteran have little probative weight because they do not specifically discuss a relationship between the Veteran’s OSA and PTSD with a degree of certainty. See id. The Board also finds that the generalized article information is outweighed by the February 2017 VA medical opinion, which was rendered by a medical professional who reviewed the Veteran’s complete claims file, reflected on the specific facts of his case, considered pertinent medical research and the articles submitted by the Veteran, and furnished a thorough rationale for her conclusions. See Nieves-Rodriguez, 22 Vet. App. 295. Specifically, she found that, due to the absence of a pathophysiological relationship between PTSD, TBI and sleep apnea, it is less likely than not, that [the Veteran’s] sleep apnea is proximately due to or aggravated beyond natural progression by his PTSD or TBI. Given that the February 2017 VA examiner found that the medical evidence does not show any pathophysiology that the Veteran’s OSA was caused by his PTSD or TBI, service connection on a secondary basis is denied. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim that the Veteran’s OSA was manifested or is related to active service, or is due to or permanently aggravated by the Veteran’s service-connected PTSD or TBI. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anna Kapellan, Associate Counsel