Citation Nr: 21066782 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 20-02 893 DATE: November 2, 2021 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for sleep apnea is granted. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. A January 2017 rating decision denied the issue of entitlement to service connection for sleep apnea; the Veteran did not appeal the decision and no new and material evidence was associated with the claims file within a year of notification of the decision. 2. Evidence received since the January 2017 rating decision that denied service connection for sleep apnea is new, relates to an unestablished fact, and raises a reasonable possibility of sustaining the claim. 3. Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that his sleep apnea is related to his service. CONCLUSIONS OF LAW 1. A January 2017 rating decision, which denied service connection for sleep apnea, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria to reopen the previously denied claim for entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2007 to September 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a November 2020 Board hearing. A transcript of the hearing is of record. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for sleep apnea. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by agency decision makers. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In a January 2017 rating decision, the RO denied the Veteran's claim to service connection for sleep apnea, finding that the record did not demonstrate the Veteran was clinically diagnosed with sleep apnea. The Veteran did not file a notice of disagreement of that decision and no new and material evidence was received within a year of notification of the decision. Therefore, the January 2017 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In June 2018, the Veteran submitted a claim to reopen the claim for entitlement to service connection for sleep apnea. The RO reopened the Veteran's claim and denied entitlement to service connection for sleep apnea on the merits. Even where the RO determines that new and material evidence has been received to reopen a claim, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. The Board finds that new and material evidence associated with the claims file since the January 2017 rating decision has been received. In that regard, the Veteran provided a private sleep study diagnosing the Veteran with sleep apnea. See May 2018 private treatment records. Additionally, the Veteran was afforded VA examinations and medical opinions in July 2018 and August 2018 confirming the Veteran's diagnosis for sleep apnea. The Board finds the May 2018 private treatment records, and July 2018 and August 2018 VA examinations new and material as they relate to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Accordingly, the Board finds new and material evidence has been received to reopen the Veteran's claim to entitlement to service connection for sleep apnea. Entitlement to service connection for sleep apnea. The Veteran seeks service connection for sleep apnea. See June 2018 VA Form 21-526. Specifically, the Veteran contends that he had sleep problems during his active duty service and his symptoms continued since service. See November 2020 Hearing Transcript. Generally, service connection may be established on a direct incurrence basis for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including resulting from undiagnosed illness, that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Persian Gulf War is defined as beginning on August 2, 1990, through a date to be prescribed by Presidential proclamation or law. 38 U.S.C. § 101(33); 38 C.F.R. § 3.2(i). Regarding service connection on a presumptive basis, the Veteran's DD Form 214 indicates service in Southwest Asia during his active duty service. Therefore, he is a Persian Gulf veteran for these purposes. The evidence of record demonstrates the Veteran was diagnosed with obstructive sleep apnea in May 2018. See May 2018 private treatment records. An August 2018 private treatment record confirms the Veteran has a current diagnosis of sleep apnea. See August 2018 private treatment record. Therefore, the presence of a current disability has been met. See Shedden, 381 F.3d at 1167. As such, the record does not support a finding that the Veteran's sleep apnea is an undiagnosed illness or a medically unexplained chronic multi-symptom illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). Moreover, the Veteran does not assert that his sleep apnea was caused by or otherwise etiologically related to any environmental exposures in Southwest Asia. Accordingly, the preponderance of the evidence is against finding that the Veteran is entitled to presumptive direct-incurrence service connection for his sleep apnea. The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In regard to an in-service event, injury, or disease, the Veteran's service treatment records (STRs) demonstrate the Veteran reported difficulty staying asleep or waking up too early; problems with unrestful sleep; daytime sleepiness; and dozing off. See May 2008 STRs. Prior to discharge, the Veteran reported sleeping difficulty; exhaustion daily; falling asleep in a car; taking naps throughout the day; and that he was told he snores. See August 2010 STRs. The Board also finds that the Veteran is competent and credible to report his symptoms began during service. The Board notes the Veteran is competent to provide lay evidence of the existence of symptoms that are capable of lay observation and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Veteran stated that, prior to discharge, he reported he had sleep issues and symptoms. See December 2019 statement in support of claim. The Veteran stated that he did not report symptoms until prior to his discharge on previous medical examinations throughout his service because he wanted to stay in service. Id.; see also November 2020 Hearing Transcript. In regard to the third element of service connection, the Veteran stated that following discharge, he was poor and homeless, was unable to seek medical attention for any health issues and did not know that sleep apnea was the cause of his symptoms. See December 2019 statement in support of claim. The Veteran testified his symptoms continued following service; he resorted to drinking coffee to cope; and his symptoms became more severe in 2016 which lead to him seeking treatment at the VA. See November 2020 Hearing Transcript. VA treatment records demonstrate the Veteran's report of difficulty sleeping in 2016. See March, August, and September VA treatment records. The Veteran was afforded an initial VA examination in November 2016. However, the VA examiner noted the Veteran was not diagnosed with sleep apnea at that time and did not opine as to whether the Veteran's sleep apnea was related to his active duty service. As such, the Board finds the November 2016 VA examination inadequate for decision making purposes as it does not provide an opinion regarding direct service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran was afforded a second VA examination in July 2018. The VA examiner opined that it was less likely as not that the Veteran's sleep apnea was related to his service-connected posttraumatic stress disorder (PTSD). However, the VA examiner did not opine as to whether the Veteran's sleep apnea was related to his active duty service. As such, the Board finds the July 2018 VA examination inadequate for decision making purposes as it does not address direct service connection. See Nieves-Rodriguez, 22 Vet. App. at 302. In August 2018, VA obtained another medical opinion in which the VA examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by his service. See August 2018 VA examination. As rationale, the VA examiner noted there was no continuity of care during the Veteran's service or for 6 years after service; the Veteran only raised sleep concerns a month before he was discharged and denied any sleep problems at his separation examination; and the Veteran did not follow up for another appointment to discuss sleep issues after he reported sleep problems in August 2010. Id. However, the VA examiner does not address the Veteran's May 2008 STRs demonstrating the Veteran reported sleep issues approximately 2 years prior to his separation from service. Additionally, as noted, the Veteran explained that he did not report symptoms during service because he wanted to remain in service, and he was unable to seek treatment following service because he was homeless and poor. As such, the Board finds the August 2018 VA examination inadequate for decision making purposes as it relies on an inaccurate factual premise. See Nieves-Rodriguez, 22 Vet. App. at 302. In support of his claim, the Veteran provided a March 2019 private medical opinion. The private physician noted review of the Veteran's medical records while he was in service and opined that it is more likely than not that his sleep apnea is related to his military service. See March 2019 private medical opinion. The private physician stated the medical opinion was based on the Veteran's report of snoring, falling asleep while driving and during the day, and migraines. Id. The Veteran testified that the private physician that provided the positive nexus opinion has been his primary care provider for a number of years and that she engaged in a discussion with the specialist who provided the Veteran's sleep study regarding treatment. See November 2020 Hearing Transcript. The Veteran also stated that he regularly brought up these symptoms to his primary care provider. Id. As such, the Board finds the March 2019 VA examination adequate for decision making purposes. See Nieves-Rodriguez, 22 Vet. App. at 302. (Continued on the next page) In this case, the Board finds the evidence of record is in relative equipoise. The Veteran provided an adequate private examination determining a link between the Veteran's sleep apnea and his military service. The November 2016 and July 2018 VA examinations, and the August 2018 VA opinion, inadequate for decision making purposes and there is no other competent medical evidence contrary to the March 2019 private physician's positive nexus opinion. Additionally, the Board notes that a Veteran may be competent and credible to provide a lay opinion as to the nexus or etiology of a disability depending on the nature of the disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Moreover, in appropriate situations, the Veteran can report symptoms to establish a link between an in-service incurrence and subsequent diagnosis of a disability. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus could be rendered based on personal observation are factors in determining whether a non-expert opinion or diagnosis is competent evidence. In this case, the Board finds that the Veteran has credibly reported experiencing symptoms since his service that led to his diagnosis of sleep apnea. Based on the foregoing, and with resolving any doubt in the Veteran's favor, the Board finds that the Veteran's sleep apnea is related to his active duty service as his symptoms began in service, continued since service, and led to his current diagnosis. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(d); see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, service connection for sleep apnea is granted on a direct incurrence basis. Although the record also raises entitlement to service connection on a secondary basis, the grant of service connection on a direct basis is a greater benefit, such that secondary service connection need not be addressed. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.