Citation Nr: 20037599 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 19-26 191 DATE: June 2, 2020 ORDER Whether new and material evidence has been received to reopen the claim for entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is granted. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is granted. Entitlement to service connection for prostate cancer is denied. FINDINGS OF FACT 1. A July 2012 rating decision, in pertinent part, denied entitlement to service connection for obstructive sleep apnea; the Veteran did not file a notice of disagreement within a year of being notified of the July 2012 decision or file any pertinent or previously unconsidered evidence relating to the claim in that one-year period. 2. Evidence received since the July 2012 rating decision includes private medical treatment records which relate to an unestablished fact necessary to substantiate the claim of service connection for obstructive sleep apnea, and raise a reasonable possibility of substantiating such claim. 3. The Veteran’s obesity is an intermediate step between his obstructive sleep apnea and service-connected adjustment disorder with depressed features, service-connected left knee degenerative changes, service-connected right knee degenerative joint disease and service-connected low back strain. 4. The Veteran’s prostate cancer did not manifest during active service and is in no way related to active service. CONCLUSIONS OF LAW 1. The July 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since July 2012, and the claim of entitlement to service connection for obstructive sleep apnea, is reopened. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). 3. The criteria for service connection for obstructive sleep apnea, to include as secondary to obesity subsequent to service-connected adjustment disorder with depressed features, service-connected left knee degenerative changes, service-connected right knee degenerative joint disease and service-connected low back strain, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to April 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities In August 2016, the Veteran filed a claim to reopen the claim for entitlement to service connection for obstructive sleep apnea. In a January 2018 rating decision, the RO reopened the claim and continued the denial of the claim finding the evidence continues to show the condition is not related to the Veteran’s service-connected chronic sinusitis, and the condition was not incurred in or caused by active duty service. Although the RO has determined that the Veteran submitted new and material evidence sufficient to reopen the claim for service connection, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104(b). However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decisionmakers. “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(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening.” See Shade, supra. The Veteran’s initial claim of entitlement to service connection for obstructive sleep apnea was denied in pertinent part by a rating decision dated in July 2012. The basis for the denial was that the medical evidence of record failed to show the disability was clinically diagnosed, and there was no evidence showing the condition was incurred in or caused by active duty service. The Veteran did not file a notice of disagreement regarding this decision; therefore, it became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen in August 2016. The evidence added to the records since the July 2012 rating decision includes private treatment records showing a diagnosis of severe obstructive sleep disorder. This evidence is material because it bears directly on the issue of a current diagnosis, which is a reason that the claim was previously denied in the July 2012 rating decision. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for obstructive sleep apnea, particularly when considering the low threshold for reopening a claim as set forth in Shade, supra. Accordingly, the claim to entitlement to service connection for obstructive sleep apnea, is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities The Veteran contends that he is entitled to service connection for obstructive sleep apnea as secondary to his service-connected disabilities. Specifically, the Veteran contends that his obstructive sleep apnea was proximately caused by weight gain due to inactivity resulting from his service-connected disabilities, i.e., adjustment disorder with depressed features, left knee disorder with degenerative changes, right knee disorder with degenerative changes, and low back strain. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately due to or the result of, or (b) aggravated by a service-connected disability. The Veteran was diagnosed with obstructive sleep apnea in 1999 and again in June 2011. He was prescribed a CPAP machine. Therefore, the first element required to establish service connection on a secondary basis has been met. Throughout the course of the Veteran’s appeal, he has asserted that his sleep apnea is caused or aggravated by his service-connected disabilities. The Veteran stated that his records show a progressive weight gain due the anti-depressant medications prescribed for his service-connected adjustment disorder with depressed features, and due to the fact that he was unable to be as active as he was before he incurred service-connected musculoskeletal conditions thereby causing progressive weight gain. See January 2020 Appellate Brief. His weight is reported in his enlistment exam as 166 pounds in June 1978, in his retirement exam as 230 pounds in November 1995, and 258 pounds in June 2011. See June 2011 Overnight Polysomnogram Report and the Veteran’s Service Treatment Records. In developing the Veteran’s appeal, the AOJ obtained a medical nexus opinion for sleep apnea in December 2017. The examiner found it is less likely than not that this Veteran’s obstructive sleep apnea is secondary to his service-connected chronic sinusitis. The examiner stated that one diagnosis has nothing to do with the other medically or anatomically. The RO based the denial of service connection for obstructive sleep apnea issued in the January 2018 rating decision on the December 2017 VA examiner’s opinion. VA’s Office of General Counsel (OGC) has held that a claim for secondary service connection may be based on obesity as an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017. Under 38 C.F.R. § 3.310(a), a disability which is proximately due to or the result of a service-connected disease or injury is service connected. A determination of proximate cause is one of fact, for determination by adjudication personnel. The Veteran asserts that his service-connected disabilities of an adjustment disorder with depressed features, left knee degenerative changes, right knee degenerative joint disease and low back strain cause fatigue and low motivation, which in turn cause obesity due to lack of exercise. Therefore, it must be determined whether obesity can qualify as an “intermediate step” between the Veteran’s service-connected disabilities and his sleep apnea. Applying the factors described by OCG, adjudicators must resolve the following issues: (1) whether the service-connected disability(ies) caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the disability for which secondary service connection is being sought; and (3) whether the Veteran’s sleep apnea would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, the Veteran’s sleep apnea may be service connected on a secondary basis. The Veteran submitted February 2020 medical opinions of a private physician, who opined that it is at least as likely as not that (1) the Veteran’s weight gain and obesity is due to and/or related to his service-connected adjustment disorder with depressed features, service-connected left knee degenerative changes, service-connected right knee degenerative joint disease and service-connected low back strain; (2) the Veteran’s obstructive sleep apnea is secondary to the weight gain; and (3) without the weight gain and obesity, his obstructive sleep apnea would not have occurred. The private examiner included medical literature in support of his nexus opinion, and of particular significance here, noted that the Veteran is prescribed three anti-depressant medications for his service-connected adjustment disorder with depressed features which promote weight gain and also noted that the Veteran’s left knee degenerative changes, service-connected right knee degenerative joint disease and service-connected low back strain caused the Veteran’s inability to be as active as he was before and subsequently caused the progressive gain weight. The February 2020 opinion is shown to have been based on review of the Veteran’s record, civilian medical records, progress notes to include physical exams and diagnostic impressions, radiological study reports, laboratory studies, previous VA examinations and the Veteran’s lay statements, and is accompanied by a sufficient explanation as to why the Veteran’s obstructive sleep apnea is secondary to service-connected adjustment disorder with depressed features, service-connected left knee degenerative changes, service-connected right knee degenerative joint disease and service-connected low back strain through the “intermediate step” of obesity. See Macelino v. Shulkin, 29 Vet. App. 155 (2018). Thus, the Board places great probative weight on the February 2020 medical opinion. In sum, the weight of the credible evidence demonstrates that the Veteran’s obstructive sleep apnea is secondary to the Veteran’s service-connected disabilities - adjustment disorder with depressed features, left and right knee degenerative changes, and low back strain. All reasonable doubt has been resolved in favor of the Veteran and the preponderance of the evidence is in favor of granting secondary service connection through the “intermediate step” of obesity. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1. Vet. App. 49 (1990). Because the Veteran’s record shows his obstructive sleep apnea is connected to currently service-connected disabilities, the Veteran’s claim meets the requirements for secondary service connection. Therefore, secondary service connection for obstructive sleep apnea is granted. 3. Entitlement to service connection for prostate cancer The Veteran contends that his prostate cancer is related to his active duty service as evidenced by unexplained and undiagnosed abdominal symptoms continuing to the diagnosis of prostate cancer and subsequent removal of his prostate in November 2017. See January 2020 Appellate Brief. Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). The Veteran’s service treatment records (STRs) show no complaints or treatment for a prostate disorder. Rather, the STRs show normal findings associated with the Veteran’s prostate. Additionally, while the Veteran’s STRs reveal abdominal complaints, including a 1985 removal of a colonic polyp with hamartomatous features, the Board notes that the Veteran specifically denied intestinal problems in connection with his June 1978 entrance examination, a February 1994 medical examination and his November 1995 retirement examination. “Normal” was marked for G-U system in connection with all of those examinations, as well as in connection with September 1982 and October 1988 reenlistment examinations. Again, no complaints or disorders of the prostate were shown. In November 2017, the Veteran submitted a Prostate Cancer Disability Benefits Questionnaire (DBQ) which noted a diagnosis of prostate cancer in September 2017 and resulting radical prostatectomy in November 2017. The examiner noted the Veteran does not have a voiding dysfunction, does not have a history of recurrent symptomatic urinary tract or kidney infection, does have erectile dysfunction attributable to the Veteran’s prostate cancer and does not have retrograde ejaculation. The examiner opined that the Veteran’s prostate cancer does not impact his ability to work. The examiner did not reference service or any event of service. The Board affords the DBQ little probative weight as the examiner did not any etiological opinion, but merely rendered a diagnosis. The Board notes that the Veteran was not afforded a VA examination to assess the current etiology of his prostate cancer, nor was VA required to offer one, as he does not meet the criteria under McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Under McLendon, the VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 83 (citing 38 U.S.C. § 5103A and C.F.R. § 3.159(c)(4)). Here, the second element under McLendon to trigger the requirement of a VA examination is not met. STRs show normal findings and do not tend to show any complaints of, treatment for, or any in-service event or injury associated with the Veteran’s prostate. Id. In this case, the evidence of record weighs against the claim of entitlement to service-connection for a prostate disorder. The Veteran’s prostate disorder did not become manifest in service and is not in any way related to service or any event of service. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for service connection for prostate cancer, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The claim is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.