Citation Nr: 20007136 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-05 370 DATE: January 28, 2020 ORDER The application to reopen a claim of service connection for sleep apnea is granted. Entitlement to service connection for sleep apnea is granted. REFERRED During the January 2020 Board hearing, the Veteran raised the issues of entitlement to service connection for headache disability and cardiac disability. These issues are referred to the agency of original jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 20.904(b) (2019). FINDINGS OF FACT 1. The Veteran’s claim of service connection for sleep apnea was originally denied in a January 2015 rating decision on the basis that the disability was not incurred in or caused by service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the January 2015 AOJ decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for sleep apnea, the absence of which was the basis of the previous denial. 3. The Veteran’s sleep apnea began during active service. CONCLUSIONS OF LAW 1. The AOJ’s January 2015 rating decision that denied the claim of service connection for sleep apnea is final. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. 2. The evidence received since the January 2015 AOJ decision is new and material and reopening of the claim of service connection for sleep apnea is, therefore, warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1980 to January 1995. These matters come before the Board of Veterans’ Appeals (Board) from a January 2017 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2020 hearing. A transcript of the hearing has not yet been associated with the Veteran’s claims file. However, in light of the fact that the Board is granting the application to reopen the claim of service connection for sleep apnea and is granting the underlying service connection claim, and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen a claim of service connection for sleep apnea The AOJ initially denied the Veteran’s claim of service connection for sleep apnea in a January 2015 rating decision on the basis that the disability was not incurred in or caused by service. The Veteran was notified of the AOJ’s January 2015 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the January 2015 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The pertinent new evidence received since the January 2015 denial of service connection for sleep apnea includes medical opinions from C.L. Spinweber, Ph.D., FAASM dated in November 2016 and January 2018 and medical opinions from E.W. Sanford III, D.O. and a VA physician, both dated in January 2018. This additional evidence indicates that the Veteran’s sleep apnea had its onset in service. Therefore, the additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran’s sleep apnea was incurred in service. The evidence is, therefore, new and material, and the claim of service connection for sleep apnea is reopened. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Entitlement to service connection for sleep apnea The Board finds, for the following reasons, that the Veteran has a current diagnosis of obstructive sleep apnea and that this disability began during active service. Medical records, including the report of a September 2017 VA sleep apnea examination, show the Veteran has a current diagnosis of obstructive sleep apnea. As for whether the Veteran’s sleep apnea is related to service, there are conflicting medical opinions. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Dr. Spinweber, a sleep medicine specialist, opined on a November 2016 “Sleep Apnea Disability Benefits Questionnaire” (VA Form 21-0960L-2) that it was likely (“much more likely than not”) that the Veteran’s sleep apnea had its onset during service. She noted in an associated November 2016 letter that she examined the Veteran and reviewed his medical records (including his service treatment records) and she explained, in pertinent part, that the Veteran had severe obstructive sleep apnea and that sleep apnea does not come on suddenly. Rather, it slowly develops and worsens over many years. The development of sleep apnea takes place over the course of an individual’s adulthood, usually beginning with mild and intermittent snoring in a young man and gradually worsening, with more disruptive and persistent snoring, more frequent breathing pauses, more oxygen desaturation episodes, cardiac involvement, and more sleep impairment. It takes many years to develop severe sleep apnea. Given the specific characteristics of the Veteran’s severe obstructive sleep apnea (as documented in his July 2013 sleep study) and his medical and sleep history, it was likely (“more likely than not”) that he developed sleep apnea 23 to 25 years prior to his sleep study. Therefore, his sleep apnea had its onset while he was on active duty. Dr. Spinweber further explained that the Veteran was told by others during service that he snored disruptively during sleep and that he was observed to stop breathing during sleep. He did not know that it was abnormal to snore and did not realize that he was experiencing repetitive breathing pauses during sleep. He thought that his poor sleep quality and fatigue were due to his duty schedule, he had little or no knowledge about sleep apnea, and he was not asked about his snoring or his sleep by his treating physicians. Disruptive snoring, observed breathing difficulties, poor sleep quality, and daytime sleepiness are all symptoms of obstructive sleep apnea. Moreover, untreated sleep apnea causes the development of other specific medical disorders and abnormalities, and the Veteran had developed these specific medical disorders and abnormalities. The presence of these medical disorders and abnormalities constituted medical evidence of underlying sleep apnea and provided the link between the Veteran’s sleep apnea and his military service. For instance, he developed hypertension and diabetes (for which he was service-connected), had a long history of headaches that began during service (untreated sleep apnea causes more frequent and more severe headaches), and had a long history of daytime hypersomnolence due to the underlying and undiagnosed sleep apnea. Also, he was seen for weight control during service. Sleep apnea causes weight gain and makes it hard to maintain normal weight and lose weight with diet and exercise. The Veteran had elevated blood pressure readings and episodes of chest pain during service, and untreated sleep apnea causes these symptoms. The gold standard for the diagnosis of sleep apnea is a sleep study recorded in an accredited sleep disorders center and interpreted by a sleep medicine specialist. The Veteran did not have a sleep study in service, but he did have symptoms of sleep apnea during service and he developed medical disorders and abnormalities that are known to be caused and exacerbated by untreated obstructive sleep apnea. The development of these medical disorders and abnormalities provided medical evidence of underlying, undiagnosed, and untreated obstructive sleep apnea. It is not unusual for an individual to have symptoms of sleep apnea for years before they are referred for a sleep evaluation. Given the current standards of military sleep medicine, the Veteran surely would have been referred for a sleep study evaluation while on active duty. Overall, Dr. Spinweber concluded that it was likely (“much more likely than not”) that the Veteran developed sleep apnea while on active duty. This opinion was based on Dr. Spinweber’s expert medical knowledge of sleep apnea, how the disability develops over the course of an individual’s lifetime, and how untreated sleep apnea causes and exacerbates other specific medical disorders, on the objective findings of the Veteran’s sleep study evaluation and his medical and sleep history, and on Dr. Spinweber’s years of experience as an expert in sleep medicine. The VA physician who conducted the September 2017 VA sleep apnea examination opined that the Veteran’s sleep apnea was not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. He reasoned that the Veteran was diagnosed as having sleep apnea in July 2013, 18 years after he was discharged from service. He had gained over 80 pounds since May 1991 and was morbidly obese at the time of his sleep apnea diagnosis. Weight gain and obesity are the top risk factors for sleep apnea. There was no evidence of any sleep apnea or sleep apnea symptoms in the Veteran’s service treatment records. Therefore, given the 18 year gap between his discharge from service and diagnosis with sleep apnea, his significant weight gain during that time, and the lack of documented sleep apnea in his service treatment records, it was not likely (“less likely than not”/“less than 50 percent”) that his sleep apnea was caused by or incurred during service. In January 2018, Dr. Spinweber again reviewed the Veteran’s records (including the September 2017 VA medical opinion) and opined that his sleep apnea developed during service. In addition to the information he already provided in his November 2016 opinion, she explained, in pertinent part, that untreated sleep apnea causes weight gain, that continued weight gain exacerbates the sleep apnea, and that having sleep apnea makes it difficult to maintain normal weight and lose weight by use of diet and exercise. Although the Veteran was never treated for sleep apnea in service, active duty personnel were rarely referred for sleep study evaluations. Continuous positive airway pressure (CPAP) had been invented at the time of the Veteran’s service, but sleep apnea and CPAP treatment were not yet widely known, and sleep apnea was not yet a VA disability. Most people still thought that snoring was normal, most laypersons knew nothing about sleep apnea, many physicians still had no training in medical school about sleep medicine, and service members were not being trained to identify symptoms of sleep apnea. Therefore, it was not reasonable to assume that there would be documentation of snoring, daytime sleepiness, or other symptoms of sleep apnea in the Veteran’s service treatment records. In a January 2018 letter, a VA physician noted that he was the Veteran’s treatment provider and he explained that based upon his discussions with the Veteran and review of his medical records, he developed recurrent headaches which may have been a symptom of sleep apnea during service. The Veteran also reported that he experienced daytime somnolence during service. In sum, the VA physician opined that it was likely (“more likely than not”) that the Veteran developed obstructive sleep apnea while serving in the military. Dr. Sanford explained in a January 2018 letter that he was the Veteran’s treatment provider and that he had reviewed the Veteran’s medical records. The Veteran experienced headaches (which may be a symptom of sleep apnea) during service and experienced daytime somnolence in service. Dr. Sanford opined that it was likely (“probably more likely than not”) that the Veteran developed obstructive sleep apnea while he served in the military. The September 2017 opinion is of little, if any, limited probative value because it is largely based on the absence of any evidence of treatment for sleep problems in the Veteran’s service treatment records or for years after service. The examiner did not acknowledge or comment upon the Veteran’s reported sleep symptoms in service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The November 2016 and January 2018 opinions, by contrast, are all based upon treatment/examination of the Veteran, a review of medical literature and his medical records, and consideration of his reported history, and they are accompanied by detailed rationales that are consistent with the evidence of record. Therefore, the November 2016 and January 2018 opinions are all entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In sum, the preponderance of the evidence reflects that the Veteran has current sleep apnea and that this disability had its onset in service. In light of the probative medical opinions described above, the Board finds that the criteria for service connection for sleep apnea have been met. Entitlement to service connection for sleep apnea is, therefore, warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, Counsel 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.