Citation Nr: 18156677 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-53 217A DATE: December 11, 2018 ORDER New and material evidence has been received, the claim for service connection for obstructive sleep apnea is reopened. Service connection for sleep apnea is denied. FINDING OF FACT 1. A December 2008 rating decision denied service connection for obstructive sleep apnea; the Veteran did not perfect an appeal of that decision or submit new and material evidence within the remainder of the appeal period. That decision is final. 2. Evidence received since the December 2008 rating decision contributes to a more complete picture of the Veteran’s disability. 3. The most probative evidence indicates that the Veteran’s obstructive sleep apnea did not arise during active service or a period of active duty for training (ACDUTRA); is not related to active service or an injury during a period of inactive duty draining (INACDUTRA); and is not caused or aggravated by the service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW 1. Evidence submitted to reopen the claim for service connection obstructive sleep apnea is new and material, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 101, 1110, 5107(b); 38 C.F.R. §§ 3.6, 3.303, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 2003 to March 2005, with additional reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Reopening Previously Denied Claim Service connection for obstructive sleep apnea was denied in a December 2008 rating decision on the basis that the evidence did not show that the Veteran’s condition resulted from, or was aggravated by, a service-connected disability. The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence received since the December 2008 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, reserve service records dated in 2013 note the Veteran underwent a tonsillectomy for sleep apnea. This new evidence contributes to a more complete picture of the circumstances surrounding the Veteran's disability. Accordingly, the claim is reopened and will be considered on the merits. 2. Service Connection for Sleep Apnea Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training (INACDUTRA) during which the person was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6(a). In other words, with respect to Reserve service, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing inactive duty training. Service connection is generally not legally merited when a disability on inactive duty training results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Service treatment records (STRs) relating to the Veteran’s active duty service are silent in regard to sleep apnea, nor does the Veteran contend the condition began during his active duty service. The Veteran was diagnosed with obstructive sleep apnea after a sleep study in August 2008. STRs relating to the Veteran’s reserve service show the Veteran underwent a tonsillectomy for his obstructive sleep apnea in February 2013. The evidence of record demonstrates a diagnosis of obstructive sleep apnea. However, there is no competent and credible evidence that the obstructive sleep apnea manifested during a period of active service and the diagnosis was not made until 2008, three years after discharge from active service. Additionally, the Board notes that the Veteran has not alleged, and the evidence does not suggest, that he suffered a specific injury during a period of INACDUTRA such that service connection for obstructive sleep apnea can be considered on that basis or that the condition arose during a specific period of ACDUTRA. The fact that the Veteran was a member of the reserves when he was diagnosed does not, in and of itself, support a finding of service connection. With respect to the assertion that the sleep apnea is secondary to his PTSD, the Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence is against finding that the Veteran’s obstructive sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a The September 2016 VA examiner opined that the Veteran’s obstructive sleep apnea was caused or aggravated by his service-connected PTSD. The examiner explained that sleep apnea is due to obstruction of airflow and PTSD has no mechanism to alter airflow in the upper airway that causes or aggravates sleep apnea. To the extent the Veteran believes his sleep apnea is related to service or is caused or aggravated by his PTSD, he is not competent to provide a nexus opinion in this case, as the issue is medically complex, and requires medical expertise to determine. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the September 2016 VA examination. In sum, there is no competent evidence of record establishing that the Veteran’s sleep apnea arose during active service or that such condition is etiologically related to any period of service or to a service-connected disability. (Continued on the next page)   In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. N. Wilson, Law Clerk