Citation Nr: 21071013 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-62 377A DATE: November 29, 2021 ORDER The request to reopen the finally disallowed claim of entitlement to service connection for sleep apnea (claimed as insomnia and disrupted sleep pattern) is granted. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The prior November 2013 rating decision that denied the Veteran's request to reopen the claim of entitlement to service connection for sleep apnea was not final since new and material evidence was received within a year of the decision. 2. The Veteran's claim of entitlement to service connection for sleep apnea (claimed as insomnia and disrupted sleep pattern) was denied in an August 2009 rating decision, which was not appealed and then became final. 3. Evidence received since the August 2009 rating decision is new to the record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim. 4. The evidence is in at least relative equipoise as to whether the Veteran's sleep apnea was incurred in service. CONCLUSIONS OF LAW 1. The November 2013 rating decision that denied the request to reopen the claim of entitlement to service connection for sleep apnea was not final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The August 2009 rating decision is final as to the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 3. The criteria to reopen the claim of entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to November 1983. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2015 rating decision issued by the Department of Veterans Affairs (VA). See July 2015 Notice of Disagreement (NOD); September 2017 Statement of the Case (SOC); December 2017 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in an August 2021 hearing. See August 2021 Hearing transcript. 1. The request to reopen the finally disallowed claim of entitlement to service connection for sleep apnea. As an initial matter, the Board finds that the prior November 2013 rating decision, which denied the Veteran's request to reopen his claim of entitlement to service connection for sleep apnea, was not final. On August 2014, VA received two medical opinions about the Veteran's sleep apnea. See July 2014 Sleep Apnea Disability Benefits Questionnaire (DBQ) from D C, M.D.; July 2014 Sleep Apnea DBQ from K H, M.D. This evidence was not previously part of the actual record before the November 2013 rating decision, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(b). As new and material evidence was received prior to the expiration of the appeal period, the November 2013 rating decision was rendered non-final, and the current Board decision relates back to the Veteran's March 4, 2013 request to reopen his claim of entitlement to service connection for sleep apnea. The Veteran requests reopening of his claim of entitlement to service connection for sleep apnea based on new evidence. March 2013 VA Form 21-4138; August 2014 VA Form 21-526EZ. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. The Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the limited purpose of evaluating whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 511 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). As discussed above, the November 2013 rating decision that denied the Veteran's request to reopen his claim of entitlement to service connection for sleep apnea is not a final decision. But the Veteran's claim of entitlement to service connection for sleep apnea was denied in an August 2009 rating decision and no additional evidence was received before the expiration of the appeal period for that decision. The Veteran did not appeal the August 2009 rating decision and it, thus, became final. The Board finds that new and material evidence has been received since the August 2009 rating decision. The Veteran's claim was denied because the preponderance of the evidence at that time was against finding that the Veteran's sleep apnea was incurred in or caused by service. Evidence received since the August 2009 rating decision includes a February 2013 private medical provider opinion from F M, D.O., that the Veteran's reported symptoms of excessive fatigue and witnessed apneas prior to 1983 are likely due to sleep apnea. This evidence is new as it was not part of the claims file at the time of the August 2009 rating decision. The evidence is material as it relates to evidence to a medical link between the Veteran's current sleep apnea and service. Accordingly, the Board finds that reopening the claim of entitlement to service connection for sleep apnea is warranted. 2. Entitlement to service connection for sleep apnea. The Veteran asserts entitlement to service connection for sleep apnea, including as due to his service-connected irritable bowel syndrome. See August 2021 Hearing Transcript. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for: (1) a disability which is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (a)-(b); see also 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Allen v, Brown, 7 Vet. App. 439 (1996) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019). After careful and thorough consideration of the claims file, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran's sleep apnea was incurred during service. The medical treatment evidence shows that the Veteran has a current disability of obstructive sleep apnea, which was first diagnosed in a 1997 sleep study. See August 2013 VA treatment evidence; May 1997 Private treatment evidence. Prior to undergoing his 1997 sleep study, the Veteran reported to his treatment providers that he has had a long history of snoring and his wife has witnessed him waking and gasping for air. April 1997 Private treatment evidence. An April 2009 buddy statement from A S, a service member that served with the Veteran in 1980, also reports seeing the Veteran's having disrupted breathing during sleep that he thought were due to nightmares. April 2009 Correspondence. April 2009 Correspondence. Finally, Dr. F M, a treatment provider at the Veteran's sleep clinic, opined that the Veteran's reported symptoms of excessive fatigue and the witnessed apneas prior to 1983 were likely due to obstructive sleep apnea. February 2013 Private treatment evidence. Dr. F M added that symptoms predating an actual diagnosis for sleep apnea is expected. Id. This medical and lay evidence is highly probative and supports finding that the Veteran's current sleep apnea disability was incurred during service. The Board recognizes that there is no complaint of excessive fatigue, snoring, or sleep apnea in the service treatment records. The Board also recognizes that the Veteran has reported to his treatment providers of having an onset of sleep apnea symptoms in 1995 or 1998, which is more than 10 years after separation. May 2007 Private treatment evidence; August 2013 Private treatment evidence. This evidence raises a reasonable doubt as to whether the Veteran's sleep apnea disability was incurred in service. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's sleep apnea was incurred in service. Accordingly, entitlement to service connection for sleep apnea is warranted. As entitlement to service connection for sleep apnea is found as directly due to service, the Board notes that the evidence and arguments about whether sleep apnea is secondary to the Veteran's service-connected irritable bowel syndrome is moot. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.