Citation Nr: 18155702 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 16-61 759 DATE: December 6, 2018 ORDER Reopening of entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), is granted. Entitlement to service connection for OSA, as secondary to service-connected PTSD with MDD, is granted. FINDINGS OF FACT 1. Entitlement to service connection for OSA was denied in a July 2014 Rating Decision, which was not timely appealed and became final; new and material evidence was subsequently associated with the claims file. 2. The OSA is aggravated beyond natural progression by the service-connected psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for reopening of entitlement to service connection for OSA have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from May 1968 to April 1970. Reopening Prior Final Claims In general, agency of original jurisdiction (AOJ) decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured with respect to a disallowed claim, the Board shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). “New” evidence is that which is not cumulative or redundant of that previously of record; “material” evidence is that which is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). For the purpose of determining whether evidence is new and material, its credibility is generally presumed. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Reopening of Entitlement to Service Connection for OSA Entitlement to service connection for OSA was denied in a July 2014 Rating Decision based on a lack of medical nexus between OSA and the Veteran’s service-connected psychiatric disability; a notification letter containing appeal rights was mailed concurrently in July 2014. The Veteran did not timely appeal the denial and it became final. In a July 2015 Statement (received after the one-year appeal window), the Veteran requested reopening of the claim. An October 2015 Rating Decision reopened the issue, but confirmed and continued the previous denial; the Veteran timely appealed the denial through an October 2015 Notice of Disagreement. Since the prior final denial, new and material evidence was subsequently associated with the claims file. Crucially, since the prior final denial, the Veteran has submitted treatment records from Dr. HJ that provided support to his July 2013 positive nexus letter by continuing to assess a relationship between sleep quality and psychiatric symptoms. See July 2013 letter by Dr. HJ (concluded that the Veteran’s OSA is at least as likely as not aggravated by the psychiatric disability); April 2014 treatment record from Dr. HJ (sleep quality improving due to Zoloft prescription). This evidence is new, because it was not previously of record, and is material, because it raises a reasonable possibility of substantiating the claim on a secondary basis. Thus, reopening is granted. Service Connection Direct service connection generally requires 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, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). 2. Entitlement to Service Connection for OSA The Veteran has already established that he: (a) has OSA (see June 2013 Fayetteville VAMC Sleep Study Report); and (b) is currently service-connected for a psychiatric disability (see August 2018 Codesheet). The Veteran generally contends that his service-connected psychiatric disability aggravates his OSA beyond natural progression. See August 2013 VA Form 21-4138; July 2015 Statement by the Veteran; October 2015 Notice of Disagreement with attached letter; December 2016 VA Form 9. The June 2013 Fayetteville VAMC Sleep Study Report found, in pertinent part: (a) the proportion of REM sleep was 18.4 percent; (b) the overall hypopnea index (AHI) was 9.9 events per hour, with AHI at 8.9 in supine, 11.1 in non-supine, and 23.5 during REM sleep. The practitioner diagnosed obstructive sleep apnea, but did not opine regarding etiology. The Veteran submitted a July 2013 letter from his private provider, Dr. HJ, who concluded that the OSA was at least as likely as not aggravated by the service-connected psychiatric disability. The provider explained that PTSD and sleep apnea may exacerbate one another because there is more REM sleep with PTSD and OSA is often more common in REM sleep. The provider attached medical literature discussing how sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions. See Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort, Sharafkhaneh et al, Sleep Disordered Breathing, SLEEP, Vol 28, No 11, 2005. The Veteran was afforded a pertinent, VA examination and opinion in May 2014. The examiner concluded that the OSA was less likely than not proximately due to or the result of the Veteran’s service-connected psychiatric disability. The examiner’s rationale was that: (a) there had been no connection that PTSD causes sleep apnea in medical literature; and (b) according to the National Institute of Health (NIH), OSA occurs when the airway collapses or becomes blocked during sleep, which causes shallow breathing or breathing pauses. The examiner did not provide citations for the medical literature referenced. The Veteran was afforded another pertinent, VA examination and opinion in October 2015. The examiner concluded that the OSA was less likely than not proximately due to or the result of the Veteran’s service-connected psychiatric disability. The examiner’s rationale was that: (a) common risk factors for sleep apnea include having a body mass index (BMI) of greater than 25, being male, and being over 65 years old; (b) at the time of the polysomnogram, the Veteran’s BMI was 41.2 and he was 64 years old; (c) a 2010 research study (published in MedPage Today) suggested that OSA may pre-date deployment; and (d) there is no evidence that PTSD causes OSA. The examiner did not comment on Dr. HJ’s July 2013 opinion or his attached medical literature in support of the claim. The preponderance of the probative evidence weighs in favor of finding that the Veteran’s OSA is aggravated beyond natural progression by the service-connected psychiatric disability. The Board finds that Dr. HJ’s opinion is of high probative value because it: (a) is supported by adequate rationale and medical literature; and (b) is consistent with the June 2013 sleep study report that showed an increased AHI during REM sleep. The Board finds that the VA opinions are of low probative value because they: (a) did not address Dr. HJ’s opinion or attached medical literature; (b) did not discuss the increased AHI during REM sleep; and (c) lacked relevant, supporting medical literature. Thus, in accordance with the weight of the preponderance of the probative evidence, service connection is granted on a secondary basis. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel