Citation Nr: 21070918 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-04 744 DATE: December 3, 2021 ORDER New and material evidence having been submitted, the claim of service connection for sleep apnea is reopened. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected deviated septum and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for back disability, to include degenerative arthritis, is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. FINDING OF FACT 1. The May 2014 rating decision denying service connection for sleep apnea was not appealed and became final. 2. Evidence received since the May 2014 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for sleep apnea. CONCLUSION OF LAW New and material evidence having been submitted, the criteria to reopen a claim of service connection for sleep apnea have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps on active duty from October 1987 to December 1991. The issues come before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing has been included with the record. Whether new and material evidence has been submitted to reopen a claim of service connection for sleep apnea Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. The Veteran's claim of service connection for sleep apnea was previously denied in a May 2014 rating decision, as the evidence of record did not establish the Veteran's current disability. The Veteran did not appeal, and the decision became final. Since the May 2014 rating decision, the Veteran submitted private medical records noting use of a CPAP machine and a diagnosis of obstructive sleep apnea (OSA). Additionally, the Veteran submitted statements from his family members which provided lay evidence that the Veteran's sleep disorder increased after active service, including that the Veteran stopped breathing while in a deep sleep. Also, the Veteran underwent a VA examination in March 2017. The VA examiner confirmed the Veteran's diagnosis of OSA. Further, the VA examiner noted the Veteran's current OSA was more likely than not the result of the Veteran's obesity. In a March 2017 statement in support of his claim, the Veteran noted that he weighed 220 pounds in service, which marked the first steps towards his obesity and sleep apnea. Finally, in the August 2021 Board hearing, the Veteran testified that he experienced sleep impairment in service, including loud snoring, and that fellow Marines complained to him about his snoring. This evidence relates to an unestablished fact, the existence of a current disability, and a causal connection between the Veteran's service, necessary to substantiate the Veteran's claim. 38 C.F.R. § 3.156(a). The Board finds the low threshold for reopening a claim of service connection has been met. See Shade, 24 Vet. App. at 120. The Veteran's claim of service connection for sleep apnea is reopened. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected deviated septum and PTSD, is remanded. The Veteran contends his current OSA is related to his active service, including as secondary to his service-connected deviated septum and PTSD. VA's duty to assist includes providing an examination and obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. VA has a duty to provide the veteran a thorough medical examination, one which takes into account the veteran's prior medical history and provides sufficient detail so that the Board's evaluation of the claimed disability is fully informed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, when a veteran's claim includes a secondary service connection theory of entitlement, VA must provide an opinion as to whether the veteran's claimed disability is proximately due to or aggravated by his service-connected disabilities. See 38 C.F.R. § 3.310. Causation and aggravation are independent concepts, and VA must ensure medical examinations have separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-304 (2008). Remand is required to provide the Veteran a VA medical opinion addressing whether the Veteran's service-connected disabilities proximately caused or aggravated the Veteran's current diagnosis of OSA. See El-Amin v. Shinseki, 26 Vet. App. 136, 138-40 (2012). Further, the Board must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). As the Veteran raised the contention that he was overweight in service, and that his obesity was related to his service and his diagnosis of OSA, remand is required to provide the Veteran a medical opinion addressing obesity and the etiology of his OSA. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). 2. Entitlement to service connection for back disability is remanded. 3. Entitlement to service connection for neck disability is remanded. The Veteran contends that his back disability and his neck disability are related to injuries sustained during active-duty service. In March 2017, the RO provided the Veteran VA examinations to address his neck and back conditions. The March 2017 VA examination noted the Veteran's history of neck and back pain recorded in the Veteran's service treatment records. However, the VA examiner noted the Veteran's back and neck disabilities were likely due to age-related changes to the spine. Here, the Board acknowledges the Veteran's contentions that his back and neck disabilities resulted from traumatic collisions experienced in service. The Veteran testified at the August 2021 Board hearing that he was injured while in service when he was thrown into the wall and roof of an amphibious assault vehicle during training and that he experienced neck and back pain since. Additionally, in the August 2017 Notice of Disagreement, the Veteran contended that his neck and back disorders stemmed from an in-service motor vehicle accident. The Veteran, as a layperson, is competent to report his observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Remand is needed to provide the Veteran an opinion that accurately addresses the Veteran's lay evidence of record and clearly addresses the Veteran's claimed in-service injury. Miller v. Wilkie, 32 Vet. App. 249, 260 (2020); see also Barr, 21 Vet. App.at 312 (2007). 4. Entitlement to service connection for residuals of a TBI is remanded. The Veteran contends that he suffered a TBI while in service. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). The Veteran testified before the Board at the August 2021 hearing that he experienced a severe head injury during training aboard an amphibious assault vehicle while in service. The Veteran recalled that he was thrown into the wall and roof of the vehicle. The Veteran reported that he hit his head so hard that he was knocked out from the collision. The Veteran stated that he was sent to treatment aboard a carrier, which he stated took about eight hours before he was sent back to training. Further, the Veteran testified that he experienced headaches every other week. The Veteran testified that he experienced flashing when he closed his eyes since his head injury in service. Lay persons are competent to provide opinions on certain subjective medical issues and on the chronicity of observable symptomatology, to include headache symptoms. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As the record is absent of any examination or opinion addressing the Veteran's claimed traumatic brain injury, including residual headaches, remand is required to address the Veteran's claim of entitlement to service connection for residuals of a TBI. See McLendon, 20 Vet. App. at 83-86. The matters are REMANDED for the following action: 1. Schedule an examination with an appropriately qualified VA clinician to determine the nature and etiology of the Veteran's sleep apnea. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the record, the examiner must opine as to: a) Whether it is at least as likely as not (50 percent probability or more) the Veteran's sleep apnea condition was proximately caused by or the result of the Veteran's service-connected disabilities, to include deviated septum and PTSD, including as a result of treatment or medication taken for any service-connected disability. b) Whether it is at least as likely as not (50 percent probability or more) the Veteran's sleep apnea condition was aggravated by the Veteran's service-connected disabilities, to include deviated septum and PTSD, including as a result of treatment or medication taken for any service-connected disability. If secondary service connection is not found, please provide a medical opinion as to: c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea had its onset during or is otherwise etiologically related to active service. Further, the examiner must provide a medical opinion addressing the Veteran's obesity as an intermediate cause to the Veteran's sleep apnea condition. The examiner shall opine as to the following: d) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities caused the Veteran to gain weight or become obese. e) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's weight gain or obesity was a substantial factor in causing the Veteran's sleep apnea condition. f) Whether it is at least as likely as not (50 percent or greater probability) that sleep apnea would not have occurred but for weight gain or obesity caused by the service-connected disability. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Obtain a medical opinion from a qualified VA examiner regarding the Veteran's back and neck disabilities. If the clinician determines that an examination is needed to provide the requested opinion, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the record, the examiner must opine as to: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's back disability had its onset during or is otherwise etiologically related to active service. b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's neck disability had its onset during or is otherwise etiologically related to active service. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 3. Schedule an examination with an appropriately qualified VA clinician to determine the nature and etiology of the Veteran's residuals of a TBI. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the evidence of record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's neurological disability, to include headaches, had its onset during or is otherwise etiologically related to active-duty service as residuals of a traumatic brain injury (TBI) and/or head injury. For the purposes of this examination, the VA clinician must address the Veteran's lay statements regarding his in-service injury aboard an amphibious assault vehicle, notably the statements regarding his loss of consciousness and reported headache symptoms since the accident. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.