Citation Nr: 1808394 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-22 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for obstructive sleep apnea (OSA). 2. Whether new and material evidence has been received to reopen a claim for service connection for insomnia. 3. Entitlement to service connection for OSA. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1978 to August 1992. This case comes to the Board of Veterans' Appeals (Board) on appeal from November 2012 and March 2012 rating decisions by the Department of Veterans' Affairs (VA) Regional Office (RO) in Denver, Colorado. In January 2017, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. Service connection for OSA and insomnia were denied in a July 2009 rating decision. The Veteran did not perfect an appeal of this rating decision nor submit new and material evidence within one year. 2. The evidence associated with the file after the July 2009 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for OSA. 3. The evidence associated with the file after the July 2009 rating decision does not include evidence that relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for insomnia. 4. The Veteran's OSA had its onset during active service. CONCLUSIONS OF LAW 1. The July 2009 rating decision that denied service connection for OSA and insomnia is final. 38 U.S.C. §7105 (2014); 38 C.F.R. § 20.302 (b) (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for OSA. 38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for insomnia. 38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in January 2017. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2014); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2014). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). 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 - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a July 2009 rating decision, the RO denied service connection for OSA and insomnia. The RO found that the Veteran's STRs were silent for complaints of, treatment for or diagnosis of sleep apnea and that there was no evidence that OSA was incurred in service. Regarding insomnia, the RO found that the Veteran did not have a current diagnosis of insomnia and that STRs were silent. Thereafter, no communication from the Veteran was received until February 2011. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the July 2009 rating decision included STRs, the Veteran's claim, and private treatment records indicating sleep apnea. There was no diagnosis of insomnia on record or a nexus opinion regarding OSA. The Veteran's lay statements were that he had insomnia during service. The STRs were silent regarding insomnia or sleep apnea, although they noted that in 1983, the Veteran reported drinking to fall asleep. Evidence submitted after the July 2009 decision includes the following: 1) VA treatment records; 2) private treatment records; 3) statements from the Veteran and his wife including testimony at the January 2017 Board hearing; and 4) a correspondence from Dr. RH. Dr. RH opined that the Veteran's earlier sleep disorder, which was diagnosed as insomnia, was actually untreated OSA. The VA and private treatment records do not contain a diagnosis of insomnia. The Veteran's lay statements were that he was told he had insomnia during service. The Board finds that new and material evidence has been presented to reopen the claim for OSA. The evidence, including the letter from Dr. RH, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - specifically evidence of a relationship to service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim for service connection for OSA is reopened. As for the claim to reopen service connection for insomnia, it was previously denied on the basis that there was no evidence of a current disability. The newly received VA and private treatment records received do not contain a diagnosis of insomnia. Reviewing the additional evidence, the Board finds that no new evidence received is material, i.e., no evidence submitted pertains to an unestablished fact necessary to substantiate this claim. Although the Veteran asserted that he had insomnia during service, this is cumulative as he made those claims prior to the 2009 rating decision. Accordingly, the Board finds that new and material evidence has not been received, and that the claim of service connection for insomnia may not be reopened. Service Connection In this case the Veteran is seeking service connection for OSA, which he asserts had its onset during his period of active service. The Veteran has alleged that he was told during service that he had insomnia. Generally, 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 (2014); 38 C.F.R. § 3.303(a) (2017). To establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107(b) (2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that entitlement to service connection for OSA is warranted. First, the Board notes that the record contains a diagnosis of OSA. The record contains a June 2007 private sleep study that contains diagnosis of severe OSA with hypersomnolence. In a January 2017 correspondence, the Veteran's private physician indicated that the Veteran has ongoing difficulties with OSA and is currently under treatment with continuous positive airway pressure (CPAP). Therefore, there is a current diagnosis and the first element of service connection is met. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Second, there was an in-service disease or event. The Veteran's STRs show that in April 1983 the Veteran reported having to drink to go to sleep. The Veteran also provided competent and credible testimony at the January 2017 Board hearing that during service he had difficulties sleeping and was told he had insomnia. The Veteran also testified that he did not report his problems more frequently because there was a stigma with going to sick call. The Veteran's wife testified that during service, she observed that the Veteran snored loudly, stopped breathing, and jerked awake, and the Veteran was fatigued. A lay witness is competent to report to factual matters of which he or she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds the Veteran and his wife's lay statements as to his symptoms are credible as they have been consistent throughout the claims process. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Thus, the second element of service connection, an in-service event, is met. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Third, the evidence supports a finding that the Veteran's OSA is related to service. In a January 2017 correspondence, after obtaining a history from the Veteran, Dr. RH opined that it is more likely than not that the Veteran's earlier sleep symptoms were actually untreated OSA. Dr. RH explained that evidence of this fact is that with CPAP treatment, the Veteran's insomnia has resolved. Dr. RH also noted that the Veteran's sleep difficulties date back to his military duty where he was diagnosed with insomnia and treated with barbiturates. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining the probative value of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). The Board assigns significant probative value to Dr. RH's opinion because it is based upon a detailed history by the Veteran, whom the Board finds credible and competent, and is supported by an explanation. The Board notes that no other negative opinions are of record. Therefore, the criteria for service connection for OSA have been met. ORDER New and material has been presented, and the claim for entitlement to service connection for OSA is reopened. New and material evidence has not been presented, and the claim to reopen the claim of entitlement to service connection for insomnia is denied. Entitlement to service connection for OSA is granted. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs