Citation Nr: 18156735 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-32 958 DATE: December 11, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. A May 2013 rating decision denied the Veteran’s claim for service connection for sleep apnea; the Veteran did not appeal that decision or submit new and material evidence during the appeal period and the decision is final. 2. Evidence received since the May 2013 denial is new and contributes to a more complete picture surrounding the origins of the claimed disability. 3. Competent evidence indicates the Veteran’s sleep apnea likely had its onset during service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for service connection for sleep apnea have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (2018). 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to November 2006. This case comes to the Board on appeal of a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2017. A transcript of the hearing is of record. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for sleep apnea 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 (2012). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a) (2018). 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 (2018). The threshold to reopen a claim is low. 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). Service connection for sleep apnea was initially denied in a May 2013 rating decision because the condition was not shown in service and there was no link between the condition and service. The Veteran did not appeal that decision or submit new and material evidence within the appeal period. Thus, the decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018); see also, Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The evidence received since the May 2013 denial includes an October 2014 letter from Dr. J.G. of the Department of Army’s Internal Medicine Center, opining the Veteran’s sleep apnea likely was present during service. Additionally, several buddy statements were received describing observed symptoms to include changes in sleep patterns from the year 2000, to include heavy snoring and jerking in sleep. This evidence relates to a previously unestablished fact and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened and will be considered on the merits. 2. Entitlement to 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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). Upon review of the record, the Board finds that the probative evidence of record is at least in equipoise as to whether the Veteran’s sleep apnea had its onset during service. A service treatment record from September 2003 indicated that the Veteran complained about having fatigue and excess snoring. On two other occasions he reported fatigue. The Veteran also testified during his hearing that his wife noted the seriousness of his snoring right after he returned from the Gulf War. The Veteran was diagnosed with sleep apnea by a 2008 sleep study. On the question of whether the Veteran’s sleep apnea arose in service, there are opinions in favor of and against the claim. A January 2016 VA examiner stated that “snoring and catching breaths within snoring are symptoms of sleep apnea but not sufficient to diagnose sleep apnea.” The examiner concluded that mere symptoms of sleep apnea in service was not sufficient for a diagnosis of an in-service injury, event or illness. Conversely, in October 2014, Dr. J.G., after reviewing the Veteran’s medical history and service treatment records, concluded that the Veteran most likely had sleep apnea prior to his retirement from service. He concluded that based on the Veteran’s symptoms, if an appropriate test had been ordered, the diagnosis would have been confirmed. Based on the foregoing, the Board finds that the competent, credible, and probative evidence is at least in equipoise as to whether the Veteran’s sleep apnea had its onset during active service. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Asare, Associate Counsel