Citation Nr: 18156301 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 17-21 111 DATE: December 7, 2018 ORDER As new and material evidence has been received, reopening of a claim for service connection for sleep apnea is granted. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. New evidence received since May 2013 addresses the material issue as to whether service-connected posttraumatic stress disorder (PTSD) caused or aggravates the Veteran’s sleep apnea. 2. The Veteran’s PTSD aggravates his sleep apnea. CONCLUSIONS OF LAW 1. Evidence received since May 2013 is new and material evidence to a claim for service connection for sleep apnea. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. Sleep apnea is aggravated by service-connected PTSD. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to November 1985, and from January 1991 to May 1991. He had Persian Gulf service in 1991. 1. Reopening of a claim for service connection for sleep apnea The Veteran is seeking to reopen a previously denied claim for service connection for sleep apnea. He essentially contends that his sleep apnea is attributable to his service, which included Persian Gulf service, or is secondary to (caused or aggravated by) his service-connected PTSD. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). Service connected is warranted for a Persian Gulf veteran who has a qualify chronic disability that became manifest during service or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2017). In September 2010 the Veteran submitted a claim for service connection for several disorders, including sleep apnea. In a November 2012 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for sleep apnea. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after a decision is issued. 38 U.S.C. § 7105. A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C. § 7105. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C. §§ 5108, 7104(b). The United States Court of Appeals for Veterans Claims (Court) has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received, VA will reconsider the claim. 38 C.F.R. § 3.156(c). In November 2012 the Veteran submitted a statement that constituted an NOD with the denial of service connection for another disorder, a knee disorder. That statement did not, however, address the denial of service connection for sleep apnea. In April 2013 records of VA medical treatment of the Veteran were added to his claims file. Those records included information about his sleep apnea. In a May 2013 rating decision, the RO reconsidered, and again denied, service connection for sleep apnea. The RO concluded that the assembled evidence did not show that the Veteran’s sleep apnea was incurred or aggravated in service, nor that it was due to an undiagnosed illness due to environmental exposure in the Gulf War. In the year following the May 2013 rating decision, the Veteran did not submit an NOD with that decision. That decision became final. In January 2016 the Veteran again sought service connection for sleep apnea. In an April 2016 rating decision, the RO confirmed and continued denial of service connection for sleep apnea. The Veteran appealed the April 2016 rating decision. To reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The most recent final disallowance on any basis of the Veteran’s claim for service connection for right shoulder disability is the May 2013 rating decision. The Board will consider whether new and material evidence has been submitted since that decision. 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(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, supra, at 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The evidence in the claims file in May 2013 includes medical records from during and after service. The records that were in the file then do not show diagnosis or treatment of sleep apnea during the Veteran’s service. Those records show diagnosis and treatment of sleep apnea beginning years after his later period of active service. The evidence added to the claims file since May 2013 includes more recent medical records, statements from a private clinician, and statements from the Veteran. The Veteran has service-connected posttraumatic stress disorder (PTSD). In December 2015, private psychiatrist H. J., M.D., expressed the opinions that PTSD can exacerbate sleep apnea, and that it is at least as likely as not that the Veteran’s PTSD aggravates his sleep apnea. Dr. J.’s opinion that a service-connected disability likely aggravates the Veteran’s sleep apnea is relevant evidence that was not addressed in May 2013. The opinion enables rather than precludes reopening of a claim for service connection for sleep apnea. The opinion therefore is new and material to the claim denied in May 2013. The Board grants reopening of the claim. 2. Service connection for sleep apnea Having reopened the Veteran’s claim for service connection for sleep apnea, the Board will consider the service connection claim on its merits. As noted above, the Veteran contends that his sleep apnea is caused or aggravated by his service-connected PTSD, or is otherwise attributable to his service, which included Persian Gulf service. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran’s service medical records do not reflect any diagnosis or treatment of sleep apnea, nor any complaint of sleep apnea symptoms. The Veteran has submitted a 2005 article from the journal SLEEP. The authors studied data about veterans, and found a significant co-morbidity association between sleep apnea and PTSD. In April 2008, the Veteran underwent a sleep study at a private facility. The reviewing physician found that he had obstructive sleep apnea (OSA). A clinician prescribed continuous positive airway pressure (CPAP) treatment. In December 2015 Dr. J. wrote that he was treating the Veteran for PTSD. Dr. J. referred to a medical article that indicates that PTSD affects sleep, in that persons with PTSD have more rapid eye movement (REM) sleep than the general population. Dr. J. indicated that REM sleep affects muscle tone of the airway, which in turn makes airway obstruction more likely. Dr. J. concluded that in this way, by increasing periods of airway obstruction, PTSD can aggravate sleep apnea. Dr. J. also referred to the 2005 SLEEP journal article indicating that data about veterans showed a significant co-morbidity association between sleep apnea and PTSD. Considering those factors, Dr. J. expressed the opinion that it is at least as likely as not that the Veteran’s PTSD aggravates his sleep apnea. On VA examination in March 2016, the Veteran reported a long history of sleep apnea, with ongoing CPAP treatment. The examiner, a nurse practitioner, noted records from the claims file, including Dr. J.’s opinion. The examiner expressed the opinion that it is at least as likely as not that the Veteran’s sleep apnea is proximately due to or the result of his PTSD. In explanation, the examiner noted Dr. J.’s opinion. In April 2016, a VA nurse practitioner reported having reviewed the Veteran’s claims file. The reviewer noted that an article Dr. J. discussed referred to comorbidity and not causation. The reviewer expressed the opinion that it is less likely than not that the Veteran’s OSA is proximately related to his PTSD. In his May 2016 NOD, the Veteran asserted that Dr. J.’s opinion supported his service connection claim, and that it must be considered and weighed along with any negative evidence. In March 2017, a VA physician reviewed the claims file. The reviewer expressed the opinion that the Veteran’s PTSD did not aggravate his OSA beyond its natural progression. In explanation, the reviewer noted 2016 treatment records that indicated that the Veteran was doing well on CPAP treatment. The March and April 2016 opinions address whether the Veteran’s PTSD caused his OSA. They do not directly address whether his PTSD aggravates his OSA. The March 2017 opinion addresses aggravation, and concludes that aggravation has not occurred. Dr. J. found that PTSD aggravated the Veteran’s OSA. That finding effectively includes a finding that his OSA has been aggravated. The 2017 VA opinion is not more persuasive than Dr. J.’s opinion. On the question of aggravation, the persuasive weight is approximately balanced. Resolving reasonable doubt in the Veteran’s favor, the Board accepts that his PTSD aggravates his OSA, and grants service connection for his OSA. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. J. Kunz, Counsel