Citation Nr: 20053779 Decision Date: 08/13/20 Archive Date: 08/13/20 DOCKET NO. 20-00 075 DATE: August 13, 2020 ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for obstructive sleep apnea is granted. New and material evidence having been received, the appeal to reopen the claim for service connection for hypertension is granted. New and material evidence having been received, the appeal to reopen the claim for service connection for headaches is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for headaches, sleep apnea and hypertension in December 2013. However, that claim was denied in September 2014; the Veteran did not appeal this decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. New evidence added to the record since the September 2014 rating decision is material to the claim for service connection for sleep apnea. 3. New evidence added to the record since the September 2014 rating decision is material to the claim for service connection for headaches. 4. New evidence added to the record since the September 2014 rating decision is material to the claim for service connection for hypertension. 5. The Veteran’s sleep apnea condition is proximately due to/aggravated beyond its natural progression by his service-connected anxiety and status post residuals of a right thigh gunshot wound. 6. The Veteran’s headache condition is proximately due to/aggravated beyond its natural progression by his service-connected anxiety issue. CONCLUSIONS OF LAW 1. The September 2014 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2020). 2. Evidence received since the last final denial on the issue of service connection for sleep apnea is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 3. Evidence received since the last final denial on the issue of service connection for hypertension is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 4. Evidence received since the last final denial on the issue of service connection for headaches is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 5. The criteria for service connection for sleep apnea as secondary to service-connected anxiety and status post residuals of a right thigh gunshot wound have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 6. The criteria for service connection for headaches as secondary to service-connected anxiety have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from April 1994 to August 1996. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Obstructive Sleep Apnea A September 2014 rating decision denied the Veteran’s claim for obstructive sleep apnea as there was no diagnosis or evidence showing an event disease or injury in-service. Since the previous denial, in June 2016 a private medical opinion by Dr. H.G. showed a diagnosis of anxiety disorder with symptoms of chronic sleep impairment. The Veteran also underwent a sleep study at the Washington, DC VA Medical Center in December 2016 and was diagnosed with obstructive sleep apnea. He was prescribed a Continuous Positive Airway Pressure (CPAP) machine to treat his obstructive sleep apna symptoms. The Veteran was also granted service connection for an anxiety disorder in March 2019 and submitted a study in December 2019 that considers ‘Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort.’ In April 2020, a private opinion from Dr. S.E. provided an etiology opinion that it is as likely as not that the Veteran’s service connected unspecified anxiety disorder, pain from his right thigh and right ankle, as well as his obesity, cause and continue to permanently aggravate his obstructive sleep apnea. Hypertension A July 2009 rating decision originally denied the Veteran’s service connection claim for hypertension because no nexus to service was shown. The September 2014 rating decision continued to deny the issue because the evidence submitted was found not to be new and material. In December 2019, the Veteran submitted the following studies: ‘Association of Sleep-Disordered Breathing, Sleep Apnea, and Hypertension in a Large Community-Based Study’ and ‘Hypertension and migraine comorbidity: prevalence and risk of cerebrovascular events: evidence from a large, multicenter, cross-sectional survey in Italy,’ from the Journal of Hypertension. VA treatment records that show a diagnosis and a treatment for hypertension from 2019 were also associated with the claims file. Headaches A September 2014 rating decision denied the Veteran’s claim for headaches because the evidence at the time did not show a diagnosis of a chronic headache condition or an event, disease and injury in service. In December 2019, the Veteran submitted the following study: ‘Depression and anxiety disorders associated with headache frequency.’ In April 2020, the Veteran submitted review articles regarding ‘Mood and Anxiety Disorders in Chronic Headache’ and ‘Depression in headaches: chronification.’ A Disability Benefits Questionnaire with a diagnosis of migraine headaches was also submitted with a residual functional capacity evaluation conducted by Dr. S.E. Dr. S.E. provided an etiology opinion that the Veteran’s service-connected anxiety causes and permanently aggravates his migraine headaches. The Board finds that the evidence highlighted above for the issues on appeal is sufficient to reopen the previously denied claims. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims. Therefore, this evidence is new and material, and reopening of the claims for obstructive sleep apnea, hypertension and headaches is in order. See Shade, supra. Service Connection Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. § 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). 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 caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Furthermore, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability. Davis v. Principi, 276 F.3d 1341, 1345. Congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital abnormality by superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). A congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90; 38 C.F.R. § 3.303 (c). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his obstructive sleep apnea condition is secondary to his anxiety disorder and status post residuals of a right thigh gunshot wound. As noted above, 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 caused by or (b) proximately aggravated by a service-connected disability. See Allen, supra. A review of the record shows that in June 2016 a private medical opinion by Dr. H.G. showed a diagnosis of anxiety disorder with symptoms of chronic sleep impairment. The Veteran also underwent a sleep study at the Washington, DC VA Medical Center in December 2016 and was diagnosed with obstructive sleep apnea. He was prescribed a CPAP machine to treat his obstructive sleep apna symptoms. Service connection was granted for an anxiety disorder in March 2019. See March 2019 Rating Decision. The Veteran is also service connected for status post residuals, gunshot wound of the right thigh. See March 2019 rating decision. In December 2019 the Veteran submitted the following study: ‘Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort,’ which concluded that sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions in Veterans Health Administration (VHA) beneficiaries and that the association suggests that patients with psychiatric disorders and coincident symptoms suggest that sleep-disordered breathing should be evaluated for sleep apnea. In April 2020, a private opinion from Dr. S.E. provided an etiology opinion that it is as likely as not that the Veteran’s service connected unspecified anxiety disorder, pain from his right thigh and right ankle, as well as his obesity, cause and continue to permanently aggravate his obstructive sleep apnea. Dr. S.E. added that the Veteran is unable to use his CPAP machine due to the feeling of being suffocated, causing him to remove it prematurely and this further aggravates his condition. Based on the foregoing, the elements required to establish secondary service connection have been met. Resolving all reasonable doubts in the Veteran’s favor, entitlement to service connection for obstructive sleep apnea, secondary to the Veteran’s anxiety condition and residuals of a right thigh gunshot wound is granted. 2. Entitlement to service connection for headaches The Veteran contends that his migraine headaches are secondary to his service-connected anxiety condition. As noted above, the Veteran is service connected for an anxiety condition since March 2019. In December 2019, the Veteran submitted the following study: ‘Depression and anxiety disorders associated with headache frequency,’ that examined the odds ratios for depression and anxiety disorders amongst both migraine and non-migrainous sufferers and found that the odds increased with increasing headache frequency and that depression and anxiety disorders are associated with both migraine and non-migraine headaches. In April 2020, the Veteran submitted review articles regarding ‘Mood and Anxiety Disorders in Chronic Headache,’ that found a high rate of comorbidity between headache and mood and anxiety disorders and ‘Depression in headaches: chronification,’ suggesting that clinicians consider depression as part of migraine management in order to optimize treatment and avoid migraine progression. A Disability Benefits Questionnaire with a diagnosis of migraine headaches was also submitted in April 2020 with a residual functional capacity evaluation conducted by Dr. S.E. Dr. S.E. provided an etiology opinion that the Veteran’s service-connected anxiety causes and permanently aggravates his migraine headaches and provided a rationale that medical research suggests that patients with mental health conditions are more likely to develop headaches because pain and mood are actually regulated by the same part of the brain. The residual functional capacity test showed that the Veteran missed at least 2 days of work per month due to headaches, left work early at least 3 or more times per month due to headaches, impacting his ability to stay focus for least 7 hours of a 8 hour workday on those days. Based on the foregoing, the Board finds that the elements required to grant service connection on a secondary basis are met. Entitlement to service connection for headaches is granted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded The Veteran contends that his hypertension is secondary to sleep apnea and headaches. VA treatment records show that the Veteran has a current diagnosis for hypertension. In December 2019, the Veteran submitted studies regarding ‘Association of Sleep-Disordered Breathing, Sleep Apnea, and Hypertension in a Large Community-Based Study’ and ‘Hypertension and migraine comorbidity: prevalence and risk of cerebrovascular events: evidence from a large, multicenter, cross-sectional survey in Italy,’ from the Journal of Hypertension. Although service connection for sleep apnea and headaches is being granted herein, the Board cannot make a fully-informed decision on the issue of service connection for hypertension because no VA examiner has opined whether the Veteran’s hypertension is caused or aggrivated as a result of sleep apnea and headaches. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination from an appropriate clinician. The record, to include a copy of this Remand, must be made available to, and its review must be noted by the examiner. 2. The examiner must review the studies referenced by the Veteran, to include: ‘Association of Sleep-Disordered Breathing, Sleep Apnea, and Hypertension in a Large Community-Based Study’ and ‘Hypertension and migraine comorbidity: prevalence and risk of cerebrovascular events: evidence from a large, multicenter, cross-sectional survey in Italy,’ from the Journal of Hypertension and issue an opinion whether the Veteran’s hypertension is at least as likely as not related to his sleep apnea/headache conditions/proximately due to his service-connected disabilities/aggravated beyond its natural progression by service-connected disabilities. 3. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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)   4. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his attorney should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.