Citation Nr: 18156888 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-60 737 DATE: December 11, 2018 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. A September 2011 rating decision denied entitlement to service connection for sleep apnea. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since September 2011, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for sleep apnea. CONCLUSIONS OF LAW 1. The September 2011 rating decision, which denied the Veteran’s claim of entitlement to service connection for sleep apnea, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 2. The evidence received since the September 2011 rating decision is new and material, and the claim of entitlement to service connection for sleep apnea is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1986 to June 1986, and June 2004 to December 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence 1. New and material evidence having been received, the claim to reopen the claim of entitlement to service connection for sleep apnea is granted. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 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. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). By way of background, the Veteran was initially denied entitlement to service connection for sleep apnea in a May 2006 rating decision. See May 2006 Rating Decision – Narrative. The Veteran was denied entitlement to service connection for his sleep apnea as the service medical records contained no evidence of treatment or diagnosis of sleep apnea and no chronically disabling condition was shown to have existed while the Veteran was on active duty. In the September 2011 rating decision, the RO denied the claim of entitlement to service connection for sleep apnea as there was no new and material evidence. See September 2011 Rating Decision – Narrative. Specifically, the records showed that the Veteran was diagnosed with obstructive sleep apnea after service but that it was not related to his military service. The Veteran was notified of this decision but did not initiate an appeal. Further, no new and material evidence was received within one year of notice of that decision. Accordingly, the rating decision is final. Since the September 2011 rating decision, there has been a VA examination, subsequent treatment records, third party statement, and Veteran’s statement associated with the file. A review of the treatment records shows that there is a third-party statement from the Veteran’s wife attesting that she witnessed the sudden development of sleep apnea-related symptoms after the Veteran’s return from his service in Iraq. See August 2015 Buddy/Lay Statement. The Board finds the Veteran’s statement, medical opinion from the VA examiner, and third-party statement in the file are new and material evidence because they were not of record at the time of the final RO decision in September 2011. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for sleep apnea. As such, the claim for entitlement to service connection for sleep apnea is reopened. See Shade, 24 Vet. App. 110. REASONS FOR REMAND The Board’s review of the claims file reveals that further action on the claim of entitlement to service connection for sleep apnea is needed. The Veteran alleged that he had sleep problems in Iraq. See August 2015 VA 21-4138 Statement in Support of Claim. The Veteran reported that they were constantly on the move visiting various posts to help with vehicle maintenance. The Veteran stated that his sleep was constantly interrupted by mortars hurling or troops in and out of the barracks or tents. Due to the poor quality of sleep the Veteran contends that his sleep apnea manifested in service. A review of the service treatment records shows no complaints, treatments, or diagnosis of sleep apnea. Specifically, the records show that the Veteran had no nose or throat trouble, no frequent trouble sleeping, and normal nose, neck, sinuses, lungs and chest in the December 1985, September 1990, December 1990, February 1996, and May 2000 examination. See February 2011 STR – Medical and September 2014 STR – Medical - Photocopy records. However, the Board notes that the Veteran underwent a polysomnographic evaluation and was diagnosed with obstructive sleep apnea only three months after service. See November 2016 CAPRI. The Veteran was also afforded VA examinations in March 2006 and April 2015. In the March 2006 VA examination, the examiner diagnosed the Veteran with obstructive sleep apnea but did not opine as to the etiology of the Veteran’s sleep apnea. See April 2015 C&P Exam and March 2006 VA Examination. In the April 2015 VA examination, the examiner opined that the Veteran’s sleep apnea is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. See April 2015 C&P Exam. The examiner explained that obstructive sleep apnea is a condition with a clear and specific etiology and diagnosis, and is not associated with exposure to environmental hazards such as burn pits exposure, inhalation of fine grain sand, fuel or solvent fumes, insecticides or pesticides or multiple vaccines. Further, the examiner noted that the Veteran had a normal chest x-ray scan and normal pulmonary physical examination. Additionally, the examiner determined that claims of having difficulty taking deep breaths and wheezing alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a medical diagnosis or physical impairment. As “complaint of difficulty taking a deep breath and wheezing with normal physical examination and chest x-ray is not an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology or a diagnosable chronic multi-symptom illness with a partially explained etiology, it is less likely than not that his symptoms of difficulty taking a deep breath and wheezing is related to a specific exposure event experienced in Southwest Asia.” As such, it is less likely than not that the Veteran’s sleep apnea is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The Board finds the April 2015 VA examiner’s medical opinion is incomplete. The examiner’s opinion regarding the Veteran’s sleep apnea focused on his exposure to environmental hazards in Southwest Asia (burn pits, fine grain sand, fuel or solvent fumes, insecticides or pesticides, vaccines). However, the Veteran alleged that his sleep apnea manifested in service from repeated interrupted sleep and not from some exposure to environmental hazards. Accordingly, the Board finds that the examiner did not consider the Veteran’s statement of in-service event (i.e., repeated interrupted sleep). As such, the Board finds that an addendum opinion is needed to address the Veteran’s statement of in-service event. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the April 2015 examiner, or if unavailable from an appropriate medical professional to evaluate his claim for sleep apnea. The claims file must be made available to be reviewed by the examiner, and a note that it was reviewed should be included in the report. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After reviewing the claims file, the examiner must determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s OSA began during his military service. In rendering this opinion, the examiner must address the Veteran’s contention that he repeatedly had interrupted sleep while in Iraq and was diagnosed with obstructive sleep apnea three months after service. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel