Citation Nr: 21002024 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 18-14 132A DATE: January 12, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for obstructive sleep apnea is granted. REMANDED Service connection for obstructive sleep apnea is remanded. FINDING OF FACT A January 2006 rating decision denying the Veteran’s claim of service connection for obstructive sleep apnea became final; the Veteran received notice of this determination and of his appellate rights but did not perfect an appeal. CONCLUSION OF LAW 1. The January 2006 rating decision denying service connection for obstructive sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2018). 2. New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for obstructive sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1963 to October 1984 with two tours of service in the Republic of Vietnam. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in October 2020. 1. New and material evidence has been received to reopen the claim for service connection for obstructive sleep apnea. The Veteran previously submitted a claim of entitlement to service connection for obstructive sleep apnea, which was originally denied in a January 2005 rating decision on the basis that the Veteran’s records did not show evidence that it was incurred in or caused by service. In light of additional evidence, a January 2006 rating decision was issued again denying the Veteran’s claim for service connection. The January 2006 rating decision became final because the Veteran did not submit a notice of disagreement or new evidence in connection with the claim within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran’s claim to reopen, he submitted medical and lay evidence, which provides details of his sleep apnea diagnosis and treatment. Thus, the Board finds that new and material evidence has been received sufficient to reopen the Veteran’s previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REASONS FOR REMAND 1. Service connection for obstructive sleep apnea is remanded. The Veteran contends that his sleep apnea symptoms began in 1993. He also asserts that his sleep apnea is secondary to his diagnosed cell nerve palsy in 1970. The Veteran testified that his symptoms require him to use a CPAP, otherwise he has problems sleeping because of difficulty breathing. See Hearing Testimony, October 2020. Service treatment records are silent for complaints or treatment for sleep apnea. However, an April 2005 otolaryngology consult discusses the Veteran’s diagnosed sleep apnea and his TMJ diagnosis and trauma to the face while serving in Vietnam. See also Medical Treatment Record, December 2004 (noting a sleep study diagnosing severe obstructive sleep apnea). Further, a November 2005 VA examination notes that the Veteran has some extra tissue in the throat, which might be the source of his sleep apnea. Given the Veteran’s competent testimony and medical evidence of record, the Board finds that a remand is necessary to obtain an opinion addressing the Veteran’s sleep apnea and its relationship to his service-connected disabilities. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of the onset of his sleep apnea, and his in-service event, injury, or disease. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Forward the claims file to a qualified medical professional for an opinion to determine the nature, onset and etiology of the Veteran’s sleep apnea. It is left to the examiner’s discretion whether to schedule the Veteran for an in-person examination (or telehealth interview, records review, etc., if an in-person examination is not feasible). The examiner should opine as to whether it is at least as likely as not that the Veteran’s sleep apnea had its onset during, or is otherwise related to, service. The examiner should specifically address if his sleep apnea is caused by a service-connected disability (to include his service-connected post-traumatic stress disorder and service-connected residuals, fracture right zygomatic arch and right maxillary sinus with headaches), his diagnosed nerve palsy, or is aggravated by a service-connected disability. In doing so, the examiner must acknowledge and discuss the Veteran’s competent report as to the onset of his sleep apnea symptoms in service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.