Citation Nr: 19155320 Decision Date: 07/17/19 Archive Date: 07/17/19 DOCKET NO. 16-24 815 DATE: July 17, 2019 ORDER New and material evidence has been received, and the petition to reopen a claim of entitlement to service connection for sleep apnea is granted. Service connection for sleep apnea is granted. FINDINGS OF FACT 1. Evidence received since the April 2007 rating decision is new and material, as the evidence is not cumulative or redundant, it has not been previously considered by decision makers, and it raises a reasonable possibility of substantiating the claim. 2. The Veteran is currently diagnosed with obstructive sleep apnea. 3. Symptoms of obstructive sleep apnea began in service and have been continuous since separation. CONCLUSIONS OF LAW 1. The April 2007 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.303, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim of service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1984 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on an appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The rating decision shows the RO denied service connection for sleep apnea because service medical records (SMRs) did not show treatment for or a diagnosis of sleeping difficulties. This claim was adjudicated and denied, on the merits, by the agency of original jurisdiction in an April 2007 rating decision. No appeal was filed for the April 2007 rating decision, resulting in the Board finding that it became final one year after issuance. Therefore, the Board must address the issue of reopening the claim prior to reaching the issue of service connection. New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is 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 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 phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence; rather, it provides guidance in determining whether submitted evidence meets the new and material requirements. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The analysis of the issue of ‘reopening’ must first be confined to the subject of the existence of new and material evidence alone and must not be an outcome-based decision. Shade, 24 Vet. App. at 121. Therefore, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. 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). The Veteran filed a notice to reopen the claim in February 2012. After receiving VA notice regarding the claim, the Veteran submitted lay evidence in March 2012 providing a written statement addressing how her sleep apnea was related to service. She detailed how she suffered from symptoms of fatigue, migraines, and the inability to sleep through the night while in service. The Veteran also explained how she became aware of the possibility of having sleep apnea during her separation examination, as well as how she was told that she would be referred for a sleep study prior to separation. She described how the sleep study failed to be referred and/or scheduled before her separation. The information contained in the Veteran’s lay statement was new, as it had not been considered or reviewed by prior VA decision makers. The lay statement was neither cumulative nor redundant of the evidence of record at the time of the Veteran’s April 2007 rating decision, which became final one year thereafter, and it related to unestablished facts that raised a reasonable possibility of substantiating the claim. This is supported by the fact that the record does not show there was a medical nexus opinion obtained or scheduled regarding the Veteran’s sleep apnea until well after the April 2007 rating decision. Therefore, the Board finds that the lay statement submitted by the Veteran is new and material. As such, upon the receipt of new and material evidence, the request to reopen the Veteran’s claim of service connection for sleep apnea is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection also may 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. For direct service connection to be awarded, there generally must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. McClain v. Nicholson, 21 Vet. App. 319, 320–21 (2007). Alternatively, a claimant may obtain service connection by continuity of symptomatology. “Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307, (2007). The Board has the duty to assess the credibility and weight of all relevant evidence; as such, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In doing so, examiners should consider the Veteran’s contention(s), the claims file, lay evidence, and clinical medical evidence before providing a negative opinion in each instance. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board recognizes that lay statements and/or testimony are competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr, 21 Vet. App. at 307; see Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Thereby, examiners are not free to ignore a Veteran’s statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran contends that service connection for obstructive sleep apnea should be granted because, prior to separation, a sleep study was to be conducted due to symptoms she presented during her Separation History and Physical Examination (separation examination). The record shows that the examining physician specifically noted that the Veteran complained of fatigue and not sleeping well, and the Veteran states that the physician issued a referral for a sleep study, but it was overlooked. For purposes of this appeal, the Board finds that the Veteran has a current diagnosis of sleep apnea, which was diagnosed in October 2012, according to VA medical treatment records. Therefore, the first element of service connection is met. The Board also finds that the record provides evidence of sleep apnea symptoms while in service, and that such symptoms have been continuous since the Veteran’s separation. While there are no SMRs noting specific complaints of or treatment for the symptoms of sleep apnea, beyond her August 2004 separation examination, the Veteran’s post-service acts and lay statements offer significant evidence towards in-service incurrence and continuity of symptomatology. The physician conducting the Veteran’s separation examination notated symptoms in reference to sleep apnea, as well as noted that she should be checked for sleep apnea. This is the initial indication of symptoms related to the condition while in-service. Therefore, the second element of service connection is met. In regard to nexus, VA treatment records indicate that the Veteran attempted to have her symptoms assessed and/or be diagnosed to receive treatment for the condition within the first year after separation. However, VA treatment records indicate that when the Veteran came for an appointment scheduled in August 2005 (as a new patient), she was informed that the appointment was cancelled, yet she had not been notified prior to that date. The appointment was rescheduled for November 2005 (approximately 14 months after separation from service), and during that examination the primary care physician noted “presumed OSA” (obstructive sleep apnea) in the treatment records. The note dictates that the patient “snores so loudly at night that husband needs to sleep in another room and he reports that she often stops breathing for periods of time during her sleep.” Subsequently, the Veteran was referred for a sleep study, from which she was diagnosed with sleep apnea in December 2005. Evidence contained in two VA examinations for sleep apnea indicate that the condition was incurred in-service. The October 2012 and April 2018 VA examinations are competent and creditable, but they have nominal probative value. This is because both opinions utilize the premise that because there were no SMRs providing symptoms or diagnosis of sleep apnea prior to the separation examination, the condition is not service connected. Thereby, the following is an assessment of how each of the said examinations improperly relied on the absence of symptoms or diagnosis within the service records. The October 2012 VA examiner’s rationale in determining that it was ‘less likely than not’ that the Veteran’s sleep apnea was incurred in-service hinges on the fact that there was only one clear and/or distinct entry in the SMRs related to sleep apnea, which was the separation examination. The October 2012 examiner’s rationale states: “There is only one ‘sleep disturbance’ documented but multiple questionnaires indicating no insomnia or frequent trouble sleeping. The one documentation of trouble sleeping was in 2004, just prior to retirement. Veteran’s records, ‘Adult Preventive and Chronic Care Flowsheet,’ and ‘Health History Questions/Interval History,’ dated 2003, both contain information r/t Veteran’s medical concerns. There are multiple entries r/t different illnesses but neither have ‘sleep disturbance’ as entry. Document, ‘Record of Medical Care,’ dated 20 May 2004, has a question re[g]arding insomnia. The record indicates no concern/problem with insomnia. With the exception of the entry on 25 Aug 2004 indicating sleeping disturbance, no other records are discovered during review of C-file…” The examiner’s rationale repeatedly points to the absence of SMRs prior to the Veteran’s separation examination in reaching the “less likely than not” medical opinion. Moreover, in completing “Medical History” section of the examination report, the examiner specifically noted that “Veteran states during her military career, she suffered with sleep disturbance and snoring but ‘did not want to seem sickly’ so did not report problem frequently.” That same medical section also included information regarding the Veteran’s snoring, and that she and her husband slept in separate rooms since approximately 1993 because of her snoring. Therefore, the October 2012 VA examination is afforded little to no probative value, as it substantially relies on the absence of service records prior to the separation examination. The April 2018 VA examiner also opined that the Veteran’s sleep apnea was less likely than not incurred in-service. In doing so, the VA examiner attempted to discount the June 2016 opinion of Dr. D.L.S., the Veteran’s private physician, which substantively stated that the Veteran “was diagnosed with obstructive sleep apnea (OSA) in 2005, but the diagnosis was considered as early as August 2004. Headaches and insomnia are often presenting complaints for OSA and it is at least as likely as not that her symptoms were related to this underlying medical condition. Although the symptoms have not resolved completely, she reports that there is a significant difference in severity of HAs when she is unable to use her CPAP device.” In subverting the private physician’s opinion, the April 2018 examiner’s rationale stated the following: “Veteran reported she experienced symptoms and was recommended for sleep study at retirement but that one was not completed until 2005, which is when she was formally diagnosed with OSA. [The] statement from Dr. [D.L.S.], dated June 2016, received July 20, 2016 - Opines that sleep apnea was incurred in service, while not formally diagnosed with OSA until 2005 shortly after service, the diagnosis should be considered as having an onset as early as August 2004, given that symptoms of headaches and insomnia are often presenting complaints for OSA and it is at least as likely as not that these symptoms were related to this underlying medical condition…” (omitting the examiner’s recitation of the above referenced “2012 VA examination” and “June 2016 opinion of Dr. D.L.S.” for redundancy)… “Headaches and chronic refractory insomnia can be associated with OSA, but they are non-specific [symptoms], and the headaches the Veteran reports during the eservice and on her most recent C&P exam, are more consistent with migraines. Also, I did not find evidence of chronic insomnia suggested by Dr. [D.L.S.] during service. The veteran reported snoring and stopping breathing in 2005 which instigated the sleep study and I did not find evidence of this occurring during her military service. Therefore, I would agree with the medical opinion as written by the C&P examiner in 2012. Unfortunately, there is not evidence of symptoms pathognomic for, or diagnosis of, a sleep disturbance to include sleep apnea, during her military service.” The April 2018 examiner attempted to negate Dr. D.L.S.’s opinion regarding a recognized sleep apnea symptom (i.e. headaches) by attributing the symptom solely to another service connected disability of the Veteran (i.e. migraines), as this would leave the Veteran with no other sleep apnea related symptoms in her SMRs. In doing this, the examiner’s opinion and rationale shows to be grounded in the fact that there were no SMRs that contained symptoms, treatment, or diagnosis of sleep apnea prior to the Veteran’s separation examination. Therefore, the April 2018 VA examination is afforded little to no probative value, as it substantially relies on the absence of service records prior to the separation examination. Nevertheless, where both VA examinations failed to properly observe the separation examination’s noted symptomatology, the Veteran’s lay statement appropriately fills the gap regarding the presence of sleep apnea symptoms during service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). Lay evidence cannot be found not credible solely due to the lack of contemporaneous medical records. See Buchanan, 451 F.3d at 1337. The Veteran’s statement regarding sleep apnea symptoms (i.e. sleep disturbances, snoring, stopped breathing etc.) during and after service are competent because they relate to observable conditions, requiring no specialized training. See Falzone, 8 Vet. App. at 403. Moreover, the Veteran’s statements are credible regarding her symptoms because they do not conflict with the medical evidence of record; and the absence of SMRs prior to the separation examination is irrelevant in that respect. Therefore, the lay statement of the Veteran is afforded significant probative value, and the third element of service connection is met. In conclusion, the lay statements and medical evidence, put together, showed that there were continuous symptoms of obstructive sleep apnea from, at minimum, the date of the Veteran’s separation examination up to the present. Denying the claim based on the absence of SMRs would be improper, as the lay evidence is facially plausible and consistent with medical evidence of record. See Dalton, 21 Vet. App. at 38 (citing Caluza v. Brown, 7 Vet. App. 498, 511 (1995)). Thus, upon consideration of all information including lay and medical evidence of record in this matter, and resolving reasonable doubt in favor of the Veteran, the criteria for service connection for obstructive sleep apnea is met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B.C. Davenport The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.