Citation Nr: 18153765 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-18 356 DATE: November 28, 2018 ORDER New and material evidence having been received, the claim for service connection for a sleep disorder, to include sleep apnea, is reopened. Service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. An April 2009 rating decision denied service connection sleep apnea/sleep disorder; the Veteran was notified of the rating action and of his appellate rights. The Veteran did not perfect an appeal on this issue, and new and material evidence was not submitted within one year of the decision. 2. The evidence received since the April 2009 denial relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea, and raises a reasonable possibility of substantiating the claim. 3. Affording the Veteran the benefit of the doubt, his obstructive sleep apnea began during active service. CONCLUSIONS OF LAW 1. The April 2009 rating decision that denied service connection for sleep apnea is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. New and material evidence has been received to reopen the previously denied claim for service connection for a sleep disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had multiple periods of active service spanning 1994 to late 2008. This case was previously before the Board in July 2018. At that time, the Board requested an opinion from a specialist in the employ of the Veterans Health Administration (VHA). A VHA opinion was authored in November 2018, in support of service connection for the claimed condition. The benefit sought is being granted in full based upon the VHA opinion; hence the Veteran does not need an opportunity to respond. As such, the appeal is properly before the Board. 1. New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d)(3). However, if evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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 claim for service connection for sleep apnea is based on the same factual basis as the previously denied claim for service connection for a sleep disorder. That claim was denied in an April 2009 rating decision on the basis that there was no medical evidence showing that the Veteran had a current diagnosed sleep condition. The Veteran did not perfect an appeal on this issue, and he did not submit new and material evidence within one year following the April 2009 rating decision. Thus, the April 2009 decision became final. Accordingly, new and material evidence must be received to reopen the claim of entitlement to service connection for a sleep disorder. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence received since the April 2009 denial became final includes a medical record of an October 2011 sleep study that the Veteran underwent, pursuant to which he was diagnosed with severe obstructive sleep apnea. This medical treatment pertains to the Veteran having a current disability, which relates to an unestablished fact necessary to substantiate the claim. Thus, as it was also not previously reviewed by adjudicators, this record constitutes both new and material evidence. Thus, new and material evidence has been received, particularly pertaining to evidence of a current disability, and the claim for service connection for a sleep disorder, to include sleep apnea, is reopened. 2. Service connection for obstructive sleep apnea Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran is seeking service connection for obstructive sleep apnea (OSA), which he asserts onset during his 2008 active duty tour while he was deployed in Kyrgyzstan (from February to September 2008). Specifically, he has stated that his OSA symptoms began during that time, and were observed by his roommate, who submitted a written statement confirming that he observed that the Veteran would snore and chortle in his sleep during that deployment. The Veteran was diagnosed with OSA after undergoing a sleep study in October 2011, but earlier VA treatment records show that a provider first noted suspicions that the Veteran had sleep apnea in May 2010. The Veteran had consistently reported difficulty sleeping to treatment providers since 2008. In July 2018, the Board requested a VHA specialist opinion from a somnologist for clarity on the issue of whether the Veteran’s sleep apnea was etiologically related to his active service, despite it not having been formally diagnosed until a 2011 sleep study. See 38 C.F.R. § 20.901 (a). Such opinion was rendered in November 2018 by a VA specialist. The specialist concluded that it was at least as likely as not (50 percent or greater) that the Veteran’s OSA had its clinical onset during his active service. In support of this conclusion, the specialist explained that, given the high severity of the level of the Veteran’s sleep apnea documented in 2011 and the frequency and persistence of his reported sleep symptoms during active service and shortly thereafter, the Veteran’s OSA likely predated his separation from active service. The Board is satisfied that this medical opinion provides a medical nexus linking the Veteran’s current OSA to his active service. (Continued on the next page)   Thus, in light of the above, the Board finds that the elements of service connection have been met, and service connection is warranted for the Veteran’s obstructive sleep apnea. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel