Citation Nr: 18158126 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 18-20 239 DATE: December 14, 2018 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is REOPENED. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability is REMANDED for additional development. FINDINGS OF FACT 1. An October 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denied the Veteran’s claim of service connection for obstructive sleep apnea, finding that the evidence did not show a connection between the claimed condition and active service; the Veteran was notified of the decision and apprised of his right to appeal, but did not file a timely appeal to the subsequent statement of the case, or submit new and material evidence within one year of the notice of decision. 2. Evidence received since the October 2013 rating decision is neither cumulative nor repetitive of facts that were previously considered, and raises the possibility of substantiating the claim. CONCLUSION OF LAW 1. The October 2013 rating decision denying service connection for a sleep apnea disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2017). 2. The criteria for reopening the claim of service connection for a sleep apnea disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the U.S. Air Force from August 1970 to December 1973. During this time, he was awarded the National Defense Service Medal. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from a July 2016 rating decision from the Department of Veterans Affairs (VA) regional office (RO) in St. Petersburg, Florida. Claim to Reopen The Veteran’s claim for entitlement to service connection for a sleep apnea disability was initially denied by the St. Petersburg RO in an October 2013 rating decision, as the claimed condition was not shown by the evidence to be due to the Veteran’s military service. The record reflects that the Veteran timely filed a Notice of Disagreement in response to the decision, but did not file a Form 9 appealing the subsequent Statement of the Case generated by the RO in March 2015. Accordingly, the October 2013 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran subsequently filed to reopen his claim for entitlement to service connection in December 2015. In support of his petition to reopen the initial denial, the Veteran stated that he had additional treatment records to submit as evidence for his claim. See December 2015 Statement in Support of Claim (VA Form 21-4138). In the process of developing this claim, the RO obtained new medical evidence consisting of the Veteran’s treatment records generated after the October 2013 rating decision and a private medical opinion from the Veteran’s doctor that his obstructive sleep apnea (OSA) was aggravated by his service-connected post-traumatic stress disorder (PTSD). See December 2015 Southern Sleep Clinics Private Opinion. Prior to making a determination with respect to the Veteran’s claim of service connection, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following a review of the evidentiary record, the Board finds the Veteran’s private medical opinion as well as his VA treatment records generated after the issuance of the October 2013 rating decision to constitute “new” evidence, as they were not available at the time of that decision. Moreover, the Board finds that this new evidence is material, as it suggests that there may be a connection between the Veteran’s current OSA and his already service-connected PSTD. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for an OSA disability, to include as secondary to a service-connected disability. REASONS FOR REMAND While the Board sincerely regrets the delay, a remand is required for additional development before the Board may make determinations on the merits of the claims currently on appeal. Specifically, the Board finds that a new sleep apnea examination is warranted. In this regard, multiple opinions from VA examiners and private doctors have been submitted regarding the relationship between the Veteran’s current OSA and his already service-connected PTSD. See, e.g. August 2013 VA Sleep Apnea Compensation and Examination Report; January 2015 VA Sleep Apnea Medical Opinion; October 2015 Southern Sleep Clinics Private Medical Opinion; June 2016 VA Sleep Apnea Medical Opinion Disability Benefits Questionnaire; November 2017 Center for Counseling and Human Development Medical Opinion; March 2018 VA Sleep Apnea Medical Opinion. These opinions address the question of whether or not the Veteran’s OSA was due to or aggravated by the Veteran’s already service-connected PTSD; none of them address whether or not the Veteran’s obstructive sleep apnea was incurred in or due to the Veteran’s active service. Further, none of these opinions provide a sufficient explanation for their respective conclusions as to why the Veteran’s OSA was or was not proximately due to or aggravated beyond its natural progression by the Veteran’s already service-connected PTSD. In this regard, a VA examiner in August 2013 opined that the Veteran’s OSA was less likely than not due to the Veteran’s PTSD because “there are no established links between PTSD and development of OSA” without providing any further explanation as to why that would be the case. See August 2013 VA Sleep Apnea Compensation and Examination Report. In January 2015, a VA examiner opined that the Veteran’s OSA was not aggravated by the Veteran’s PSTD because he did not require continuous medication for his OSA or any findings related to his OSA outside of persistent daytime hypersomnolence, without discussing the progression of the Veteran’s OSA. See January 2015 VA Sleep Apnea Medical Opinion. The Veteran’s private doctor opined in December 2015 that the Veteran’s OSA was likely aggravated by his PTSD without indicating if he had reviewed the Veteran’s complete claims file, and further cited to treatise evidence regarding OSA and PSTD without any discussion of the Veteran’s medical history or as to how the Veteran’s PTSD specifically came to bear on his OSA. See October 2015 Southern Sleep Clinics Private Medical Opinion. In June 2016, a VA examiner opined that the Veteran’s OSA was not caused by a mental health condition, but instead was “caused by a mechanical instruction of the upper airway” without providing any further explanation. See June 2016 VA Sleep Apnea Medical Opinion Disability Benefits Questionnaire. In November 2017, the Veteran submitted a second private opinion that concluded that the Veteran’s OSA was aggravated by his PSTD; rested on the conclusions of the previous December 2015 opinion; speculated that if another VA examiner had examined the Veteran she would have provided a different conclusion; and cited to treatise evidence without providing any specific discussion as to how the Veteran’s PTSD came to bear on his OSA. See November 2017 Center for Counseling and Human Development Medical Opinion. Finally, in March 2018, a VA examiner opined that the Veteran’s OSA was more likely due to risk factors such as age, weight, and gender, again without specifically discussing the progression of the Veteran’s OSA. See March 2018 VA Sleep Apnea Medical Opinion. Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An adequate medical opinion with regard to etiology should consist of a thorough review of the claims file and discussion of the relevant evidence (including the disability in question), a consideration of the lay contentions of the Veteran, and clear conclusions with a supporting rationale. Barr, 21 Vet. App. at 311; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, the Board finds a new VA examination is warranted to determine if the Veteran’s OSA is due to, incurred in, or the result of his active service, to include as secondary to his service-connected PTSD. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the Veteran. All attempts to secure any identified records and any response received must documented in the case file. 2. After completion of the above development, schedule the Veteran for an additional VA examination in the appropriate specialty to determine the nature and etiology of the Veteran’s claimed obstructive sleep apnea disability. The examination should include any diagnostic testing or evaluation deemed necessary. The electronic claims file, including a copy of this remand, must be made available for the examiner to review. The examination report must include a notation that this record review took place. The Veteran must be interviewed. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. The examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. The examiner is also requested to address the conflicting medical evidence in the record, to include the previous opinions regarding the Veteran’s obstructive sleep apnea and his already-service connected PTSD. 3. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: (a.) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s sleep apnea began during, or is otherwise related to the Veteran’s active duty service? (b.) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s sleep apnea was caused by or aggravated by any of the Veteran’s service-connected disabilities, to include PTSD? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. If aggravation has occurred, the provider must identify a baseline for the Veteran’s sleep apnea. The term aggravation is defined as a chronic and permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for service connection for the Veteran’s claimed obstructive sleep apnea disability, to include as secondary to a service-connected disability. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (“SSOC”) and allow the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel