Citation Nr: 20008533 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 19-03 613 DATE: January 31, 2020 ORDER The petition to reopen the previously denied claim for service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic disorder (PTSD), is granted. REMANDED Entitlement to service connection for OSA is remanded. FINDING OF FACT An unappealed March 2016 rating decision denied service connection OSA; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The March 2016 rating decision denying the claim for service connection for OSA is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 2007 to April 2008. This matter comes before the Board on appeal from a January 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Whether new and material evidence has been received to reopen a previously denied claim for service connection for OSA. The Board concludes that the March 2016 rating decision denying the claim for service connection for OSA is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). 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 C.F.R. § 3.156(a). A March 2016 rating decision originally denied service connection for OSA because it did not have its onset in service and was not otherwise related to service. VA notified the Veteran of this decision in a March 2016 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the March 2016 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. In October 2016, the Veteran filed a claim to reopen his previously denied service connection claim for OSA. Evidentiary submissions received since the last prior final denial includes new and material evidence. Specifically, (1) VA received a September 2017 buddy statement from the Veteran’s roommate in service indicating that the Veteran began to snore really loud and showed signs of restlessness and breathing problems in around October 2007; and (2) December 2017 contract Disability Benefits Questionnaire (DBQ) finding that the Veteran’s OSA is at least as likely as not proximately due to the Veteran’s service-connected PTSD. The recent evidentiary submissions tend to suggest onset of OSA symptoms in service and/or that OSA developed secondary to service-connected PTSD. The evidence cures a prior evidentiary defect. The credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Further, the language of 38 C.F.R. § 3.156(a) creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the petition to reopen is granted. REASONS FOR REMAND Entitlement to service connection for OSA is remanded. The Veteran contends that he began OSA had its onset in service, noting that he had to experience sleep issues during active duty, but thought it was normal due to sleep deprivation. See NOD (April 2018). He reports that he was diagnosed with OSA prior to separation in January 2018. Id. Alternatively, he contends that his OSA is related to his service-connected PTSD, to include medications taken for it. See VA 21-526EZ, Fully Developed Claim (Compensation) (October 2016); Third Party Correspondence (March 2019). The Veteran reports that he gained excessive weight due to his PTSD, which made it difficult for him to exercise and caused him to seek out high calorie foods for comfort. Id. To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). Initially, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for OSA on direct basis because no VA examiner has opined on whether it began in service. The Board finds that the December 2017 DBQ and the March 2019 DBQ are inadequate. First, the December 2017 examiner’s reasoning is unclear when stating that the Veteran’s PTSD did not cause his OSA. Clarification is necessary to explain why, if the Veteran has service-connected risk factors for OSA, these are not the cause of his OSA disability. Second, the examinations did not adequately consider obesity as an intermediate step between PTSD and OSA. The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an “intermediate step.” See VAOPGCPREC 1 2017 (Jan. 6, 2017). Specifically, a grant is warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. Remand is thus necessary, because no examiner has opined on whether the Veteran’s service-connected PTSD caused him to become obese and, if yes, whether his obesity in particular is a substantial factor in causing his OSA. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate physician to determine the nature and etiology of the Veteran’s diagnosed OSA. The following should be addressed: (a.) Whether OSA, at least as likely as not, was first manifested during the Veteran’s active service considering his competent, credible report of snoring as well as the buddy report of hearing the Veteran snore, and the September 2012 report of sleeping difficulties. (b.) Whether OSA, at least as likely as not, is proximately due to or aggravated beyond its natural progression (even intermittently) by service-connected PTSD to include medications taken therefor. (c.) Whether it is at least as likely not (50 percent or greater probability) that service-connected PTSD caused the Veteran to become obese. a. If so, whether the resulting obesity was a substantial factor in causing the Veteran’s OSA. b. If yes, whether but for the Veteran’s obesity, the Veteran would have developed OSA. 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. (CONTINUED ON THE NEXT PAGE) 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.