Citation Nr: 20045065 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 17-27 167 DATE: July 7, 2020 ORDER As new and material evidence has been presented, the petition to reopen the previously denied claim of service connection for a sleep disorder is granted. Entitlement to service connection for a sleep disorder is granted. FINDINGS OF FACT 1. In an October 2007 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a sleep disorder and notified the Veteran of its decision. The Veteran did not file a notice of disagreement (NOD) to appeal the October 2007 decision, and it became final. 2. The additional evidence submitted since the October 2007 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a sleep disorder. 3. Resolving reasonable doubt in the Veteran’s favor, her sleep disorder began during active service. CONCLUSIONS OF LAW 1. The October 2007 rating decision denying service connection for a sleep disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As new and material evidence submitted since the October 2007 denial has been received, the criteria for reopening the claim of service connection for a sleep disorder are met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for a sleep disorder 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 July 2001 to July 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. New and Material A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raise a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. See Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. As new and material evidence has been presented, the petition to reopen the previously denied claim of service connection for a sleep disorder The Veteran’s claim for entitlement to service connection for a sleep disorder was previously denied in an October 2007 rating decision because the RO determined that the Veteran did not have a diagnosis of sleep apnea, and the evidence failed to show a current chronic disability. Since the October 2007 rating decision, evidence including medical records, lay statements and hearing testimony have been submitted by the Veteran. The Board thus concludes that the evidence received since the October 2007 rating decision is new and material as it is not cumulative and, when considered with evidence earlier of record, relates to the unestablished elements necessary to substantiate the claim. Thus, the claim of entitlement to service connection for a sleep disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 2. Entitlement to service connection for a sleep disorder The Veteran asserts that her sleep apnea was incurred in service. At the March 2020 Board hearing, the Veteran testified that she began having sleep issues during service that have progressively worsened. She stated that during service, her driving license was revoked for six months because her sleep disorder caused her to fall asleep without warning. The Veteran reported that she has used a continuous positive airway pressure (CPAP) machine while sleeping since 2011. Service treatment records from July and August of 2003 show the Veteran complained of having a sleep disorder and excessive tiredness. In September 2005 she again complained of having sleep problems for two years. Treatment notes from December 2005 indicate the Veteran’s symptoms remained unchanged, and that the Veteran reported falling asleep while driving. Service treatment records from February 2007 show the Veteran had irregular sleep-wake rhythm, and in May 2007 she was assessed to have a mixed type sleep disorder. Post-service medical records from March 2009 show the Veteran underwent a sleep study. While she was noted to have occasional loud snoring, a sleep apnea diagnosis was not issued. Records show the Veteran was scheduled for another sleep study in June 2012, but the study report is not within the claims file. VA medical records from 2016 through 2018 list sleep apnea as one of the Veteran’s active problems, and she has continuously sought treatment for sleep issues. The Veteran was not afforded a VA examination to assess her sleep disorder. The Board finds that the evidence supports granting the Veteran’s claim of service connection for a sleep disorder. The Veteran contends that she incurred a sleep disorder during active service and experienced continuous disability due to this sleep disorder since her service separation. Service treatment records document the complaints related to the Veteran’s sleep issues, as well as a diagnosis for a mixed type sleep disorder. Following service, VA medical records show the Veteran continued to require treatment for sleep apnea, to include the use of a CPAP machine. The Board finds that the evidence of record shows an etiological link between the Veteran’s current sleep disorder and active service. After resolving any reasonable doubt in the Veteran’s favor, the Board finds that service connection for a sleep disorder is warranted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, Associate 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.