Citation Nr: 21067983 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 18-33 342 DATE: November 8, 2021 ORDER New and material evidence having been added to the record, the appeal to reopen the claim of entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. A May 2011 rating decision denied entitlement to service connection for obstructive sleep apnea. The denial is final. 2. Evidence added to the record since May 2011 is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for sleep apnea. 3. Resolving all doubt in the Veteran's favor, his obstructive sleep apnea had its onset during active service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the final May 2011 rating decision to reopen the claim of entitlement to service connection for obstructive sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1982 to September 2004. He is the recipient of several medals, including Navy and Marine Corps Commendation Medal (with 2 stars) and a Marine Corp Good Conduct Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a November 2021 virtual Board hearing. A transcript of that proceeding will be associated with the record. 1. New and material evidence having been received, the claim to reopen the previously denied entitlement to service connection for OSA claim is granted. The Veteran seeks to reopen a claim of service connection for OSA. By way of history, a July 2006 rating decision originally denied entitlement to service connection for OSA. The July 2006 rating decision was not appealed, and reconsideration was not requested. The denial is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. In October 2010, the Veteran requested to reopen his claim of service connection for OSA. A May 2011 rating decision continued and confirmed the previous denial of service connection for OSA, noting the claim was not considered reopened. The May 2011 rating decision was not appealed, and reconsideration was not requested. The denial is final. Id. In the February 2016 rating decision on appeal, the RO denied to reopen the Veteran's claim based on no new and material evidence having been submitted. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b), 7105(c). 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 means existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither 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). 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). See Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). 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). In this case, the Board finds that new and material evidence has been received subsequent to the last final rating decision. Relevant evidence added to the claims file since the May 2011 rating decision includes hearing testimony by the Veteran during his November 2021 virtual Board hearing indicating a link between the Veteran's currently diagnosed sleep apnea and service. This evidence satisfies the definition of new and material evidence, as it was not before decision makers at the time of the last final rating decision and provides evidence towards substantiating the Veteran's claim. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claim of service connection for OSA. 2. Entitlement to service connection for obstructive sleep apnea is granted. The Veteran contends that his obstructive sleep apnea began during active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disease or injury 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 53. As an initial matter, the record unambiguously reflects a diagnosis of obstructive sleep apnea. As such, element one of service connection has been met. Further, the Board finds that the Veteran has competently and credibly described the symptoms he experienced in service, including persistent snoring, tiredness, and gasping in his sleep. In May 2018, both the Veteran and his wife provided written correspondence detailing the Veteran's sleep symptoms. The Veteran's wife reported that she has witnessed her husband stop breathing during sleep with episodes since at least 2001, while still in service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). These symptoms were then diagnosed as obstructive sleep apnea, approximately one year after the Veteran's separation from service. While sleep apnea is not a chronic disease for VA purposes, and therefore service connection based on continuity of symptomatology is not applicable, the reports of persistent symptoms since service and the short time between the Veteran's separation and his diagnosis are still probative of the presence of a nexus. Post service records note a June 2005 sleep study, less than a year following service. The results from that sleep study were lost by the VA, however, the Veteran contends that a diagnosis of sleep apnea was ascertained. Other sleep studies were conducted in October 2005 and July 2010. The record reflects a diagnosis and ongoing treatment for sleep apnea. The Board finds the Veteran's statements, as well as the statement prepared by the Veteran's wife regarding the onset of his sleep symptoms to be credible. The Board notes there is no medical opinion regarding the relationship between the Veteran's sleep apnea and active service; however, because the weight of the evidence shows that the sleep apnea began in service, a medical nexus opinion is not necessary to establish service connection. Considering the competent and credible lay statements of record of in-service symptoms and the brief period between separation and formal diagnosis, the Board finds that evidence of the Veteran's obstructive sleep apnea cannot be disassociated from his service. Accordingly, the competent lay and medical evidence is in relative equipoise as to whether the Veteran's current obstructive sleep apnea was incurred as a result of the Veteran's service. Therefore, the Board will resolve doubt in favor of the Veteran and grant the Veteran's claim. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.