Citation Nr: 21062862 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-48 146A DATE: October 12, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened. FINDINGS OF FACT 1. A February 2014 rating decision denied the Veteran's claim for service connection for sleep apnea. The Veteran was notified of this decision and of his appellate rights by a letter dated February 28, 2014. He did not appeal. 2. Additional evidence received since the February 2014 rating decision is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim for service connection for sleep apnea. CONCLUSIONS OF LAW 1. The February 2014 rating decision is final regarding the Veteran's claim for service connection for sleep apnea. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted to reopen the claim for service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2005 to January 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2015 and April 2016 rating decisions. The Veteran requested a hearing at a local VA office in his September 2017 VA Form 9, Appeal to the Board of Veterans' Appeals. Later, the Veteran elected to participate in a virtual tele-hearing. In July 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual tele-hearing. A transcript of that hearing is of record. At his hearing, the Veteran clarified that he was not claiming that his sleep disorder was secondary to hypertension. Rather, he was claiming only that it was related to his active service. In the December 2015 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for service connection for sleep apnea on the merits. An April 2016 rating decision reopened the Veteran's claim for service connection and denied it on the merits. The Board must determine of its own accord whether new and material evidence is of record to reopen the claim before it may consider it on the merits. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). An Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) appointing American Legion as the Veteran's representative was received in June 2021. An Appellant has 90 days from the certification of an appeal to the Board to change representation for any reason. 38 C.F.R. § 20.1304(a). If a change in representation is requested more than 90 days after certification, the Appellant must show good cause for the change. 38 C.F.R. § 20.1304(b). The June 2021 request for a change in representation was not received within 90 days from February 25, 2019, the date the Veteran was notified that the appeal was certified to the Board. In addition, good cause has not been offered for the change. Consequently, the Board has not accepted the appointment of a new representative for purposes of the current appeal. 1. New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened. A determination on a claim by the AOJ of which the claimant is properly notified is final if no notice of disagreement is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines "new and material evidence" as follows: "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a), Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In order to warrant reopening, the new evidence must neither be 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); see Shade, 24 Vet. App. at 117 (holding that there is a "low threshold" for reopening). When determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received within one year after the date of mailing of a decision by the AOJ, it prevents that decision from becoming final and will be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of a decision by the AOJ prevents that decision from becoming final); 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered"). A February 2014 rating decision denied the Veteran's claim for service connection for sleep apnea. The Veteran was notified of this decision and of his appellate rights by a letter dated February 28, 2014. New and material evidence was not received within one year after the date of mailing of a decision by the AOJ. Accordingly, the February 2014 rating decision is final concerning this claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted petitions to reopen his claim for service connection for sleep apnea in October 2015 and February 2016. A July 2018 private treatment record from Florida Apnea Diagnostics demonstrates that following a sleep study, the Veteran was diagnosed with mild obstructive sleep apnea. This evidence was not of record at the time of the February 2014 rating decision and relates to an unestablished fact necessary to support the claim for service connection, namely a current diagnosis of obstructive sleep apnea. Thus, the Board finds the evidence is both new and material. See 38 C.F.R. § 3.156(a); see also 38 C.F.R. § 3.303; Shade, 24 Vet. App. at 122. Therefore, the claim for service connection for sleep apnea is reopened. REASONS FOR REMAND 2. Entitlement to service connection for sleep apnea is remanded. During the July 2021 hearing, the Veteran advised that he was seeking service connection for sleep apnea on direct basis. The Veteran stated that he did not have sleep apnea prior to his active service. He had insomnia in 2011 during his active service and he believes that he was diagnosed with sleep apnea during his active service. He maintains that he was afforded a sleep study during his active service by a private provider. He was also afforded a sleep study at a VA facility in Tampa, Florida, in 2013, he was diagnosed with sleep apnea, and was provided a Continuous Positive Airway Pressure (CPAP) machine. He has had symptoms of difficulty sleeping that began during his active service and have continued since that time. For the following reasons, the Board finds that a remand is necessary in this matter. The Veteran was afforded a February 2014 VA Sleep Apnea Disability Benefits Questionnaire. The examination report provides that the Veteran has a diagnosis of hypersomnolence. Concerning the Veteran's medical history, the examination report indicates that the Veteran's sleep apnea condition started on or about 2008. Fellow service members told him that he snored. He had a sleep study performed at a VA facility in 2013 and was provided with a CPAP machine. The corresponding February 2014 medical opinion states that it is less likely than not that the Veteran's claimed sleep apnea was incurred or is related to his active service. In support, the medical opinion advises that his September 2013 polysomnography test, which is the gold standard for diagnosing obstructive sleep apnea, failed to confirm a definitive diagnosis of obstructive sleep apnea. The Board notes that VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Following a sleep study, a July 2018 private treatment record from Florida Apnea Diagnostics demonstrates that the Veteran has mild obstructive sleep apnea. The Veteran has not been afforded an examination since his diagnosis. Additionally, the Veteran maintains that his sleep apnea began during his active service and his service treatment records contain notations for snoring and insomnia. Because there is at least an indication that the Veteran's current obstructive sleep apnea may be related to his active service, a medical opinion must be provided to make an informed decision on this claim for service connection. McLendon, 20 Vet. App. at 83; see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from February 2020 to the present. 2. After the above development is completed, obtain an addendum medical opinion from an appropriate clinician regarding the Veteran's current sleep disorder. The need for another examination is left to the discretion of the clinician offering the addendum medical opinion. The clinician must review the Veteran's claims folder. The clinician must: (a.) Identify all current sleep-related disabilities found to be present, including obstructive sleep apnea. See July 2018 sleep study from Florida Apnea Diagnostics demonstrating that the Veteran has mild obstructive sleep apnea. (b.) Opine whether any identified sleep-related disability, and/or sleep disturbance symptoms resulting in functional impairment of earning capacity, at least as likely as not (50 percent probability or greater) had its clinical onset during the Veteran's active service or is otherwise related to his active service. In providing the above opinion, the clinician should consider: In a November 2010 Post-Deployment Health Assessment, the Veteran was referred to primary care management for snoring. During the Veteran's active service, he was treated for insomnia on March 7, 2011. A May 2011 sleep study conducted at Southeast Lung & Critical Care Specialists & Southeast Sleep Disorders provides that the study demonstrates no significant obstructive sleep apnea with the Apnea Hypopnea Index (AHI) within normal limits and no significant oxyhemoglobin desaturations. The study likely underestimated the true severity of the Veteran's obstructive sleep apnea according to the report. A May 2013 VA treatment record, dated only four after service, states that the Veteran has sleep apnea. He has loud snoring with periods of apnea, awakes at night with shortness of breath, and reports daytimes somnolence. An October 2013 sleep study conducted at VA shows that the Veteran was referred for evaluation of possible obstructive sleep apnea. He presented with a history of snoring, irregular respiratory efforts during sleep, and daytime sleepiness. There was evidence of minimal obstructive hypopneas overall, but perhaps more significant episodes were noted in Rapid Eye Movement (REM) sleep. These events, even in REM sleep, are not associated with significant periods of oxygen desaturation. The impression is listed as possible obstructive sleep apnea and study's specific recommendations advise that there is evidence for REM associated obstructive sleep apnea. A July 2018 private treatment record from Florida Apnea Diagnostics demonstrates that following a sleep study, the Veteran was diagnosed with mild obstructive sleep apnea. The Veteran statements that his sleep apnea began during his active service. A complete rationale for all opinions expressed must be set forth by the clinician. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.