Citation Nr: 18156303 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 07-14 615 DATE: December 11, 2018 ORDER Request to reopen a claim for service connection for obstructive sleep apnea (OSA), to include as due his service connected other specified trauma and stressor related disorder (claimed as post-traumatic stress disorder (PTSD)); to this extent only, the appeal is granted. REMANDED Entitlement to service connection for OSA is remanded. Entitlement to total disability individual unemployability (TDIU), is remanded. FINDINGS OF FACT 1. A claim for service connection for OSA was denied by an April 2015 rating decision; the Veteran did not file a Notice of Disagreement with that decision or submit new evidence within a year of the decision. The decision therefore became final. 2. The Veteran filed a request to reopen his claim in June 2017. 3. Evidence received subsequent to the April 2015 decision is not cumulative of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for OSA. CONCLUSIONS OF LAW 1. The April 2015 rating decision which denied a claim for service connection for OSA is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. 2. The criteria to reopen a claim for service connection for OSA have been met. 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 October 1972 to September 1975 and January 2003 to January 2004. He had additional reserve service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2017 rating decision and March 2018 decision from the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified before a Decision Review Officer (DRO). A transcript of the hearing is of record. New and Material A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 116667 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303 (b) for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service; and service connection may be established by evidence of continuity of symptomatology. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed unless such evidence is inherently incredible or beyond competence of the witness. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Request to reopen a claim for service connection for obstructive sleep apnea (OSA) is granted; to this extent only, the appeal is granted In a decision dated in April 2015, the RO denied the Veteran’s claim for service connection for OSA, to include as due to PTSD on the basis that there was no record of it in service and no evidence to show a relationship to his service-connected PTSD. The Veteran did not submit a Notice of Disagreement with this decision nor did he submit any new evidence within a year of the decision. Thus, the April 2015 decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. The Veteran’s application to reopen his claim of service connection for OSA was received in June 2017. A July 2017 rating decision reopened the claim, but then denied the claim on the merits. The question of whether a claimant has submitted new and material evidence to reopen a claim and the question of whether upon such reopening, a claimant is entitled to VA benefits, are questions relating to a single “matter” for purposes of the Board’s jurisdiction under 38 U.S.C. § 7104 (a). Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). It is the Board’s jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Id.; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Based on the grounds stated for the denial of service connection for OSA in the April 2015 rating decision, new and material evidence would consist of evidence of OSA symptoms in service or a nexus between the Veteran’s OSA and his active duty service or a service-connected disability. In this regard, additional evidence received since the March 2010 includes a buddy statement from W.J., received by VA in May 2018, in which he noted that during service, he and the Veteran worked together and he observed his sleeping behaviors. W.J. noted that when the Veteran fell asleep, he would snore loudly and excessively. Also, a buddy statement from A.B. who served with the Veteran received by VA in May 2018, in which he noted when the Veteran fell asleep, he would snore loudly, choke, and stop breathing. This evidence is neither cumulative nor redundant since it provides evidence of OSA symptoms while in service. Previously, there had been no evidence in support of his claim on either a direct or secondary basis. There had also been no evidence of symptoms in service. Therefore, the evidence addresses unestablished facts necessary to substantiate the claim and satisfies the low threshold needed to reopen a previously denied claim. Accordingly, the Board finds that the evidence received subsequent to April 2015 rating decision is new and material and serves to reopen the claim for service connection for OSA. REASONS FOR REMAND 1. Entitlement to service connection for OSA, to include as secondary to PTSD, is remanded. Although there is sufficient evidence to reopen the claim for service connection, it is insufficient to decide the claim on de novo review. The Veteran has alleged that his sleep apnea is related to his military service to include as secondary to his service-connected PTSD. As discussed in the decision above, the Veteran has submitted statements from fellow officers that reported OSA signs and symptoms while in service. Proper consideration must be given to the lay statements. The Board also finds that the April 2015 medical opinion of record fails to discuss whether OSA was warranted on a direct basis and only discussed whether OSA was due to or a result of the Veteran’s PTSD. Because the April 2015 opinion fails to address the issue of direct causation this opinion is inadequate. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). The Board further notes that the evidence of record shows that the Veteran’s service-connected PTSD has been manifested by chronic sleep impairment including difficulty falling asleep, staying asleep, or restless sleep. Therefore, the Board finds that the evidence of record raises an issue of whether the service-connected PTSD aggravates the diagnosed OSA. The April 2015 VA examinations is also deficient in that they did not address the matter of aggravation, which is another component to be considered in secondary service connection claims. See 38 C.F.R. § 3.310; see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that a VA examiner’s opinion that the claimed disability was “related to” factors other than a veteran’s service-connected disability was insufficient, as it did not clearly encompass a discussion of aggravation). Because the medical evidence of record is insufficient to resolve the claim, the Board finds that a new opinion should be obtained that addresses the nature and etiology of his OSA that fully considers the lay statements of record as well as all theories of entitlement. 2. Entitlement to TDIU, is remanded. The Veteran’s claim of entitlement to service connection for TDIU is inextricably intertwined with his claim for entitlement to service connection for sleep apnea. Therefore, the Board must defer adjudication of the TDIU claim until the development of the sleep apnea claim is completed. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician, preferably a sleep medicine physician, regarding the Veteran’s OSA. The examiner is asked to address whether the Veteran’s OSA is at least as likely as not related to his active duty service; proximately due to service-connected disability; or aggravated beyond its natural progression by service-connected disability. The examiner must take into consideration and comment on the lay statements of record, to include but not limited to: (a.) the buddy statement from W.J., received by VA in May 2018, in which he noted that during service, he and the Veteran went on various missions together when he observed his sleeping behaviors. W. J., noted that when the Veteran fell asleep, he would snore loudly and excessively; (b.) the lay statement from A.B. received by VA in May 2018, in which he noted when the Veteran fell asleep, he would snore loudly, choke, and stop breathing in his sleep at night. The examiner must provide a rationale for each opinion given and all contradictory evidence must be addressed. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for OSA in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.   If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel