Citation Nr: 18161054 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-02 130 DATE: December 28, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served in the Navy from March 1988 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO determined that a March 2014 rating decision was final. Appellate review of a rating decision is initiated by a Notice of Disagreement and perfected by filing a completed Substantive Appeal (VA Form 9) once a Statement of the Case has been furnished. 38 U.S.C. § 7105 (a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1103. The submission of new and material evidence within one year following a rating decision tolls the finality of that decision. 38 C.F.R. § 3.156 (2017). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period" that prevents an initial determination from becoming final); see also Muehl v. West, 13 Vet. App. 159 (1999). The Veteran’s claim was reopened by the RO in June 2014 based on receipt of additional evidence not previously considered. Thus, the Board finds that the March 2014 rating decision was not final. Because the March 2014 rating decision was not a finally denied claim, the Board is not required to address de novo whether new and material evidence has been received to reopen the claim before addressing the merits of the claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Entitlement to service connection for sleep apnea is remanded. Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Regarding the issue of entitlement to service connection for sleep apnea, the Veteran contends that he has a diagnosis of sleep apnea with use of a CPAP machine nightly. The Veteran asserts that his sleep apnea had its onset during service. Current treatment records, in addition to a March 2014 VA examination confirm the diagnosis of obstructive sleep apnea. Therefore, the Board finds that the Veteran meets the first test of having a current disability. The next question is whether the Veteran’s current disability was incurred or aggravated during service. The Veteran asserts that he had symptoms of sleep apnea in service. He submitted a lay statement and two Buddy statements from fellow soldiers who support his assertions of heavy snoring and talking in his sleep during service. See May 2014 Buddy Statements. The Veteran was afforded a VA examination in December 2014 to determine whether there was a nexus between his sleep apnea and service. The VA examiner opined that the Veteran's sleep apnea is “less likely as not” caused by or a result of or aggravated by service, as there was no evidence from treatment records that the Veteran received treatment for sleep apnea or had symptoms during service. The examiner concluded that there was an “insufficient amount of evidence to support service connection for sleep apnea.” The examiner did not provide a rationale that addressed the Veteran’s lay statements concerning claimed symptoms during service, or the symptoms reported by the Veteran’s buddy statements, as to whether they could have been associated with the etiology of sleep apnea. Given that the December 2014 VA examiner did not sufficiently address whether the Veteran's currently diagnosed sleep apnea began in service, the Board finds this examination to be inadequate and therefore remands this matter for an additional VA examination and opinion regarding the etiology of the Veteran's sleep apnea. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matter is REMANDED for the following action: 1. Obtain any outstanding and relevant VA and/or private treatment records. Should such exist, associate such with the Veteran's electronic claims record. (Continued on the next page)   2. Thereafter, schedule the Veteran for a VA examination with a physician of sufficient medical expertise to determine the nature and etiology of his sleep apnea. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file and should note that this case review took place. After a review of the claims file, the examiner must respond to the following: Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's currently diagnosed sleep apnea had its onset in service or is otherwise related to service? The VA examiner is specifically directed to consider and address the Veteran’s contention that he had symptoms of sleep apnea in service. The VA examiner is also directed to consider and address buddy statements from fellow soldiers that reported Veteran snoring loudly and talking in his sleep. See May 2014 buddy statements. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale for the opinion must be provided. Review of the entire claims file is required. 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the issues should be readjudicated in light of all the evidence of record. If a benefit sought on appeal remains denied, the AOJ should furnish to the Veteran and representative an appropriate supplemental statement of the case (SSOC) and should afford them the appropriate time period for response. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD CLittle, Associate Counsel