Citation Nr: 21072125 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-42 471 DATE: December 2, 2021 ORDER New and material evidence has been received to reopen service connection for sleep apnea. Service connection for sleep apnea is granted. FINDINGS OF FACT 1. In the February 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for sleep apnea on the basis that the evidence did not show a nexus between the sleep apnea and service. 2. Evidence received since the February 2010 rating decision relates to the previously unestablished fact of in-service incurrence of sleep apnea or other causal link between sleep apnea and service. 3. There is a current disability of sleep apnea. 4. The current sleep apnea had its onset during service. CONCLUSIONS OF LAW 1. The February 2010 rating decision denying service connection for sleep apnea became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received to reopen service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army during the Gulf War Era and Peacetime from June 1977 to June 1981, and from October 1981 to June 1993. The basis of the current appeal is a March 2016 rating decision denying reopening of service connection for sleep apnea. The Veteran filed a timely appeal of the March 2016 rating decision. 1. New and material evidence/reopening service connection for sleep apnea A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. 38 C.F.R. § 20.1103 (2018). An appeal is perfected when a claimant, or his or her representative, files a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. 38 C.F.R. § 20.302 (2018). New and material evidence received prior to the expiration of the appeal period 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). Accordingly, if new and material evidence is submitted within the one-year appeal period, the decision is not final. New evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components: (1) that the new evidence pertains to the reason(s) for the prior final denial, and (2) that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id., at 118. The initial rating decision was issued on February 16, 2010, finding that the evidence did not show a nexus between the sleep apnea and service. The Veteran did not enter a notice of disagreement or supply additional evidence within one year of the decision, and no new and material evidence was submitted within one year after the February 2010 rating decision; therefore, the decision became final. Activity on the issue resumed in April 2012, when the AOJ on its own sought out hospital records. See April 2012 VA Correspondence. After reviewing the evidence received since the February 2010 rating decision, and presuming the credibility of the evidence for the limited purpose of reopening, the Board finds that new and material evidence has been received to reopen service connection for sleep apnea. Potentially relevant evidence received since the 2010 rating decision include two statements, both made in July 2017, made by the Veteran's spouse and son. The spouse's statement includes a description of sleep apnea symptoms (loud snoring and sudden awaking as if the Veteran is choking and gasping for air), and that the symptoms were noticed during service. The son's statement includes similar descriptions. As the two statements are new to the record, and describe sleep apnea symptoms during service that are often associated with sleep apnea, when they are presumed to be credible for reopening purposes, these new statements raise a reasonable possibility of substantiating the claim. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for sleep apnea. 38 C.F.R. § 3.156(a). 2. Service connection for sleep apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The Veteran contends that symptoms of sleep apnea were present during active duty service. See January 2017 Notice of Disagreement. This direct service connection theory is the only theory to be considered. While the November 2015 claim to reopen also contended that the sleep apnea is associated with (secondary to) anxiety disorder (which has been recharacterized and rated as service-connected posttraumatic stress disorder), the Veteran clarified on the July 2017 Form 9 that he does not want VA to consider the claim on a secondary service connection basis (as secondary to the service-connected PTSD), but only as directly incurred in service. See July 2017 Form 9. The evidence shows a current disability of sleep apnea, which was initially diagnosed in January 2001. Private treatment records show a confirmed recent diagnosis in July 2016. After weighing the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether sleep apnea had its onset during service. The National Institutes of Health describe common signs of sleep apnea primarily, reduced or absent breathing (apneas), excessive tiredness (hypersomnolence) gasping for air during sleep. Service treatment (medical) records from the October 1981 to June 1993 service period appear to be missing. The Agency of Original Jurisdiction (AOJ) attempted to procure the missing records. The AOJ wrote the National Personnel Records Center and the Records Management Center and asked for a copy of all records. See February 2010 VA Memorandum. The AOJ also sent a letter to the Veteran asking if he had a copy of any records, but he did not. VA made attempts to obtain all identified and available treatment records for the Veteran. Despite these efforts, it appears that there are potentially still records missing. In such situations, where treatment records are missing, the Board has a heightened duty to search for records and explain their efforts to that effect, a heightened obligation to explain its findings and conclusions, and a requirement to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all evidence that may be favorable to the veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. (Continued on the next page) Accordingly, the Board has carefully considered the Veteran's contention of in-service incurrence of sleep apnea, and the lay statements provided by the Veteran's wife, son, and daughter. All three lay statements contain descriptions of some potential signs or symptoms of sleep apnea during the Veteran's period of active duty service. The daughter's statement describes how around 1993 the Veteran would periodically fall asleep at inappropriate times, such as while driving. This could suggests daytime hypersomnolence. The Veteran's wife in a July 2017 statement describes witnessing sleep apnea symptoms during service, such as choking and coughing during sleep that result in arousal. Similarly, the Veteran's son reports that he witnessed his father experiencing loud snoring followed by choking leading to waking from sleep. The son placed these memories around 1989-1990. Resolving reasonable doubt in the Veteran's favor, the Board finds that symptoms of sleep apnea had their onset during service to warrant direct service connection on the basis that the symptoms that began during service were later diagnosed as sleep apnea. Such evidence shows that the later diagnosed sleep apnea began during service, that is, was "directly incurred in" service to warrant service connection. See 38 C.F.R. § 3.303(d). For these reasons, the criteria for direct service connection for sleep apnea have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.