Citation Nr: 18157359 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 10-44 743 DATE: December 12, 2018 ORDER The petition to reopen the previously denied claim for service connection for sleep apnea is granted. Service connection for sleep apnea, to include as secondary to post-traumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. A final November 2004 rating decision denied service connection for sleep apnea; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease; or is caused or aggravated by a service-connected disability, to include PTSD. CONCLUSIONS OF LAW 1. The November 2004 rating decision denying the claim for service connection for sleep apnea is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.104, 3.156(a), 20.1103. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to October 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In correspondence from February 2015, the Veteran requested that his hearing be cancelled. Therefore, his request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704(e). Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 1. New and material evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. A November 2004 rating decision denied the Veteran service connection for sleep apnea based on a lack of a disease, injury, or event in service. The Veteran filed a timely notice of disagreement, then a statement of the case was issued in September 2005. However, a timely substantive appeal was not filed and the appeal was not perfected. Additionally, no new and material evidence was received within the appeal period after the rating decision. As such, the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.156(b) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per § 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The evidence presented since the last final denial in the November 2004 rating decision includes updated medical treatment records, VA examinations, and lay statements regarding secondary service connection to PTSD. Since the last final rating decision on sleep apnea, the Veteran has been service connected for PTSD. The aforementioned evidence when taking together is new and material as it was not of record at the time of the last rating decision in 2004 and provide an indication of a link. The low threshold to reopen has been met so claim of service connection for sleep apnea is reopened. 38 U.S.C. § 5108. 2. Service connection for sleep apnea, to include as secondary to post-traumatic stress disorder (PTSD) Primarily, the Veteran contends that his sleep apnea was caused by his PTSD. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The competent evidence, to include medical treatment records showing a July 2012 sleep study and a March 2013 VA examination show a current diagnosis of sleep apnea. Additionally, the record reflects that the Veteran is service-connected for PTSD effective March 9, 2009. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence is against finding that the Veteran’s sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected PTSD. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310. The Veteran was afforded a VA examination in March 2013. The examiner opined that the Veteran’s sleep apnea was less likely than not proximately due to or the result of his service-connected disability. Instead, it was due to an anatomical abnormality in which the tissues around the airway collapse during sleep causing snoring and apnea. The rationale was that a psychological condition is not going to cause an anatomical abnormality. Further, there is no evidence that PTSD causes sleep apnea. In October 2017, the Board obtained an expert medical opinion through the Veterans Health Administration (VHA opinion). The physician, certified in sleep medicine, opined that it was less likely than not that the Veteran’s sleep apnea was related to his active service. The rationale was that a diagnosis of sleep apnea was made approximately twenty-five years after discharge from service. If sleep apnea was present in service, it is unlikely that it would take twenty-five years for a diagnosis. It is also not uncommon for individuals to snore many years before developing sleep apnea. Sleep apnea was a well-known entity in the VA system from the 1980s onward. The physician noted that there was an association between PTSD and sleep apnea. However, a review of the literature fails to find convincing evidence of a causal link. On the other hand, there is a strong link between obesity and sleep apnea which was discussed with the Veteran in VA treatment records, to include in 2008. Therefore, the VA staff physician did not find the Veteran’s sleep apnea to be secondary to PTSD. The Board obtained another VHA opinion in June 2018. After review of the evidence, the VA physician, director of the sleep medicine program at a VA medical center, and associate professor at a university, opined that the Veteran did not have obstructive sleep apnea while on active duty. He was diagnosed with sleep apnea in 2003. This was sixteen years after he separated from service in 1987. While it is known that obstructive sleep apnea often begins years before it is formally diagnosed, it is too much of a reach to expect that time could extend to sixteen years without clearer evidence of obstructive sleep apnea being present at the time of active military duty. Regarding the relationship between obstructive sleep apnea as a secondary condition to the Veteran’s documented PTSD, it is possible that obstructive sleep apnea may exacerbate symptoms associated with PTSD. This expert in the field stated that there is no evidence in the medical literature to indicate that there is a causal relationship between the two conditions. The 2018 VHA opinion noted that sleep apnea may exacerbate PTSD symptoms in contrast to the Veteran’s claim that his service-connected PTSD aggravated his sleep apnea. The Board gives more weight to this VHA opinion as it is probative as it is based on an accurate medical history and provides a rationale that contains clear conclusions, references to pertinent medical and lay evidence, and supporting data. Additionally, it was provided by a competent medical professional with specialized training and experience in the field of sleep medicine. While the Veteran believes his diagnosed sleep apnea is secondary to his PTSD, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it involves psychiatric disorder and the cause and relationship to his sleep apnea (a respiratory disorder) that requires specialized knowledge and expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). However, none of these situations applies here. Consequently, for the reasons noted above, the Board gives more probative weight to the competent medical opinion of the March 2013 VA examiner, and the expert VHA opinions from October 2017 and June 2018. Thus, the Board finds that his lay assertions are heavily outweighed based on the current facts before the Board. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s sleep apnea is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records do not contain any records that the Veteran complained of symptoms, sought, or received treatment for sleep apnea during service. He did report “frequent trouble sleeping” in a report of medical history at separation in July 1987. An accompanying note indicated it was due to depression and a personal situation. His clinical separation examination in July 1987 did not document sleep apnea or a sleeping condition. The Board notes the lay statements made by the Veteran indicating that he did not sleep well and that he was told that he snored while he was in active service and that those issues continued once he separated from service. The Board acknowledges the above lay and medical evidence, but finds that it is refuted by competent evidence of record, including medical evaluations. The earliest medical evidence of record of a sleep apnea diagnosis was in approximately April 2003 (via overnight polysomnography), about sixteen years after his separation from service. The Board gives more probative weight to the VA and VHA opinions of record that all opined that his sleep apnea was not directly related to his active service. The examiners and VHA clinicians have medical training, reviewed his history, and provided a rationale for the negative opinions. In sum, the preponderance of the evidence is against any causative nexus between the Veteran’s in-service report of “frequent trouble sleeping,” or other in-service events, and his currently diagnosed sleep apnea. Additionally, the preponderance of the evidence is against a finding that the Veteran’s sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected PTSD. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran’s claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel