Citation Nr: 21003389 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 18-12 851 DATE: January 21, 2021 ORDER New and material evidence having been received, the application to reopen the claim of service connection for a sleep disorder is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a psychiatric disorder, diagnosed as depressive disorder, is granted. Entitlement to service connection for right upper extremity cold injury residuals manifested by tremors and numbness/tingling is granted. Entitlement to service connection for left upper extremity cold injury residuals manifested by tremors and numbness/tingling is granted. FINDINGS OF FACT 1. An August 2009 rating decision denied service connection for a sleep disorder; the Veteran did not appeal this denial, and VA did not receive new and material evidence within one year after notice of the decision. 2. Since the last final denial in August 2009, new and material evidence related to the issue of a sleep disorder has been received. 3. The Veteran has obstructive sleep apnea which onset in service. 4. The Veteran has depression which onset in service. 5. The evidence is at least evenly balanced as to whether the Veteran’s right upper extremity cold injury residuals manifested by tremors and numbness/tingling is related to a period of ACDUTRA. 6. The evidence is at least evenly balanced as to whether the Veteran’s left upper extremity cold injury residuals manifested by tremors and numbness/tingling is related to a period of ACDUTRA. CONCLUSIONS OF LAW 1. The August 2009 denial of service connection for a sleep disorder became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104. 2. New and material evidence has been received to reopen the previously denied claim of service connection for a sleep disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for depressive disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 5. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for right upper extremity cold injury residuals manifested by tremors and numbness/tingling have been met. 38 U.S.C. § 101, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.6. 6. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for left upper extremity cold injury residuals manifested by tremors and numbness/tingling have been met. 38 U.S.C. § 101, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.6. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to April 1987 and July 2005 to September 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied entitlement to service connection for the issues of depression, hypertension, glaucoma, residuals for cold injury right upper extremity, residuals for cold injury left upper extremity, and sleep apnea after reopening the issue. In April 2016, the RO denied hypertension again. An October 2017 Statement of the Case continued the denial of hypertension, and the Veteran did not appeal the decision within 60 days. The RO granted service connection for glaucoma in January 2018. Following a January 2018 Statement of the Case continuing the denials of service connection for depression, sleep apnea, and residuals of a cold injury to the bilateral upper extremities, the Veteran timely appealed the denials in March 2018. New evidence has been submitted in support of the Veteran’s claims since it was last adjudicated by the RO in the January 2018 SOC. However, there is no prejudice to the Veteran for the Board to proceed as the decisions herein constitute a full grant of benefits. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2021 hearing. A transcript of the hearing has not yet been associated with the claims file, but as the benefit sought is being granted in full, a transcript is unnecessary. New and Material Evidence 1. Whether New and Material Evidence Has Been Received to Reopen the Claim of Service Connection for a Sleep Disorder. Where a claim has been finally adjudicated, a claimant must present new and material in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. An August 2009 rating decision confirmed and continued a denial of service connection for a sleep disorder, previously denied in an October 2007 rating decision. The decision noted that the evidence did not show a current sleep disorder including sleep apnea were present. The Veteran did not appeal the August 2009 rating decision, and VA did not receive new evidence within one year after the notice of the decision. As such, the August 2009 rating decision became final. Since the last final denial in August 2009, VA has received new and material evidence to reopen the Veteran’s claim which includes a July 2015 diagnosis of obstructive sleep apnea syndrome and a written January 2021 medical opinion that the Veteran’s sleep apnea was from service. This evidence is new, relates to an unestablished element of the previously denied claim, and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and service. Therefore, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to qualify for VA benefits, a claimant must be a “veteran” under the law. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Under 38 U.S.C. § 101(2), a “veteran” is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and; (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C. § 101(22), (24); McManaway v. West, 13 Vet. App. 60, 67 (1999) (stating that the law “permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty”). Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant’s claim where he served only on active duty for training and had not established any service-connected disabilities from that period). However, “once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA.” Hill v. McDonald, 28 Vet. App. 243, 252 (2016). Thus, in order to establish veteran status with respect to a period of ACDUTRA or INACDUTRA, and therefore eligibility for service connection, the record must establish that a claimant was disabled or died due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or that he or she was disabled or died from an injury (or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident) incurred or aggravated in the line of duty during a period of INACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24). 2. Service Connection for Obstructive Sleep Apnea Regarding his service connection claim for sleep apnea, the evidence of record demonstrates that the requirement of a current disability has been met. The Veteran was diagnosed with sleep apnea. See e.g. VA examination for glaucoma (this Veteran has significant sleep disorders including now a diagnosis of sleep apnea); July 2015 Sleep Medicine Consult (diagnosis of mild obstructive sleep apnea syndrome). Thus, the first element of service connection for obstructive sleep apnea has been met. As to the in-service disease or injury requirement, the Veteran’s service treatment records show complaints and treatment pertaining to sleep, including diagnoses of sleep disturbance in November 2006, primary snoring in July 2007, hypersomnolence in January 2008, and narcolepsy in June 2008. Here, the Veteran has communicated to VA that he experienced sleep apnea symptoms during service, including extreme tiredness, and his statements in this regard are competent and credible. See August 2016 DRO hearing. Further, the symptoms of dizziness while on active duty are supported by the medical evidence of record. This is sufficient to establish the second element of his service connection claim. The third element of the claim to establish service connection is whether there is a nexus between the Veteran’s current diagnosis of sleep apnea, and his symptoms in service. The Veteran’s competent and credible lay statements indicate that he began experiencing sleep apnea symptoms, in service and the disordered sleep later served as the basis for the diagnosis of sleep apnea, and that he continued to have those symptoms after service until diagnosis. See August 2016 DRO hearing. He currently requires a breathing machine due to his disability. As explained in Maples v. Wilkie, No. 18-2016 (Vet. App. Feb. 11, 2019) (mem dec), sleep apnea is the type of disability as to which lay evidence can be sufficient to support a claim for service connection. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). A July 2007 sleep study reports reflects results of respiratory events and oxygenation within normal limits, and an impression of primary snoring. A September 2007 VA examination report contains there was “no evidence of any sleep disorder as per polysomnogram and MSLT.” However, this opinion is not entitled to probative weight as it merely points out a lack of objective evidence in the claims file of a current sleep apnea diagnosis already in existence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion did not address the Veteran’s symptoms, lay statements, or evidence of sleep problems including sleep-related diagnoses during active duty. In a January 2008 followup for hypersomnolence, the medical provider wrote that the Veteran’s last two polysomnograms reveal rapid sleep onset with high sleep efficiencies, and that this was a confusing case and the diagnosis was “somewhat uncertain,” but there were multiple sleep latency tests showing rapid sleep onset and sleep onset REM periods. A professional medical opinion dated January 2021 accompanies the claims file in support of a finding that the Veteran’s symptoms, experienced on active duty, were directly related to the development of his current sleep apnea. The medical doctor wrote that while in service, the Veteran suffered from symptoms of obstructive sleep apnea, specifically citing service treatment records such as from November 21, 2006 giving the diagnosis of sleep disturbance, May 4, 2007 noting the Veteran only sleeping a few hours per night waking up snoring, a June 12, 2007 sleep study giving the diagnosis of primary snoring, July 6, 2007 noting sleeping on and off and waking himself up snoring, and others. As this professional explained the reasons for the findings based on an accurate characterization of the evidence, the opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning).   For the reasons set forth above, entitlement service connection is warranted for sleep apnea. 3. Service Connection for Depressive Disorder The Veteran has a current diagnosis of depressive disorder. See October 2015 VA examination report (diagnosed with depressive disorder unspecified); see also January 2021 private opinion (suffers from depression). He testified at an August 2016 Decision Review Officer (DRO) hearing that in service he had not understood that depression was more extensive that being “upset about something” and instead could include mood swings and complacency. He also detailed events he experienced in service which led to the development of his current psychiatric disability. Medical treatment records from service show in January 2008 the Veteran was provided an assessment of “possible depression,” and a December 2007 Medical Board narrative summary noted that a psychiatric evaluation found he had depression. A February 2008 physical profile showed the Veteran’s medical condition included depression. Post-service medical records show the Veteran currently is treated for depression, and a June 2015 Behavioral Care Team Consult note shows the Veteran reported experiencing feelings of depression and anxiety for many years, previously having been treated for depression in 2007 to 2008. As for the etiology of the Veteran’s current depression and whether it is the same as the depression diagnosed in service, two medical opinions accompany the claims file. An October 2015 VA examiner opined that the Veteran’s current depressive disorder is not caused by military experiences and is based on non-service related occupational factors. There was no specific rationale provided for this opinion. A January 2021 private medical doctor found that the Veteran’s depression at least as likely as not began in service and continues to the present day. The doctor cited several treatment records which reflect the Veteran’s in-service diagnosis and post-service treatment in support of the finding that the Veteran continued to seek treatment for depression following service. The January 2021 private medical opinion is therefore entitled to substantially more probative weight as the rationale was thorough and based on the facts of record. In sum, the Veteran has been diagnosed with depressive disorder and there is a probative medical opinion which indicates that this psychiatric disability is related to service. Additionally, the record shows he was diagnosed with depression during service and continued to seek treatment within one year following separation from active duty. Thus, the preponderance of the evidence is in favor of a conclusion that his current depression is related to service and therefore entitlement to service connection is warranted. 4. Service Connection for Residuals of Cold Injury, Right Upper Extremity 5. Service Connection for Residuals of Cold Injury, Left Upper Extremity The Veteran testified at the January 2021 Board hearing that he experienced an injury from cold weather exposure in 1986 and has had numbness and tremors since that time. At an August 2016 Decision Review Officer hearing with the RO, the Veteran testified that towards the end of his training and prior to graduation, he experienced shaking and feeling winded, and was told by a doctor that he was “frostbitten.” He also testified that since the in-service frostbite injury to his hands he has continued to experience tingling in his hands and tremors, and now has a “cold intolerance.” An October 1986 Report of Medical Examination reflects the Veteran was enlisted in the Army National Guard at that time. Subsequent service treatment records show the Veteran had experienced a cold weather injury. See e.g. February 2008 Physical Profile (authorized to wear extra clothing due to cold injury); March 2008 Medical Evaluation Board Proceedings (cold injury from 1986 while on active duty; is on a permanent P2 profile for this); June 2008 Sleep Center followup (history of cold injury from 1986). Personnel records reflect between October 1986 and October 1987, the Veteran served for inactive duty for training and a substantive amount of active duty. The Veteran underwent a VA examination in September 2015 in connection with his claims. Despite service treatment records showing a previous injury and the Veteran reporting to the examiner he had a history of cold weather intolerance from 1986, the examiner noted there were no frost bites described in his service treatment records and thus opined the Veteran does not have cold injury residuals with no documented episodes of cold injuries in the extremities. The September 2015 VA examination is not adequate in that it was not based on an accurate review of the facts and did not explain if or why the Veteran’s symptoms and reported in-service injury were not credible other than lack of documentation in 1986. The Veteran is competent to report continuous symptoms in the years since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service). There is nothing to explicitly contradict the Veteran’s testimony, and that testimony is consistent with the evidence of record. The Veteran has a current disability in that he experiences a functional loss due to his injury in service. To this end, evidence in the claims file shows he currently is treated for tremors he has experienced since military service, and requires medication to be able to write and feed himself without difficulty. See October 2017 neurology note. Saunders, 886 F.3d at 1364-65 (a diagnosis is not required to meet the current disability requirement and pain alone can constitute disability if it causes impairment in earning capacity); see also Martinez-Bodon v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1523 (July 7, 2020) (the holding of Saunders is not limited to pain). Considering the Veteran’s current symptoms, his injury during a period of ACDUTRA, and the nature of his service at that time, the Veteran has achieved “veteran” status for this period of ACDUTRA by showing he has these disabilities to his right upper extremity and left upper extremity due to the cold injury from 1986 when he served on ACDUTRA. He has also shown that his current disabilities are related to this period of ACDUTRA. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s right upper extremity and left upper extremity cold injury residuals manifested by tremors and numbness or tingling are related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for these disabilities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.