Citation Nr: A21020616 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 210818-179891 DATE: December 29, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is dismissed. New and relevant evidence has been received with respect to the previously denied claim to establish service connection for obstructive sleep apnea, and thus, readjudication of the claim is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. The Veteran did not timely file a VA Form 10182 but provided good cause to permit the Board to extend the time for filing a VA Form 10182 with respect to the rating decisions issued in April 2019 and July 2019. 2. On the record at the November 2021 Board hearing, before promulgation of a decision on appeal, the Veteran withdrew his appeal for service connection for an acquired psychiatric disorder, to include PTSD and depression. 3. New and relevant evidence was received after the final September 2012 rating decision that is relevant to the issue of entitlement to service connection for OSA. 4. The Veteran's OSA had its onset in service. CONCLUSIONS OF LAW 1. The criteria for an extension for the filing and the acceptance of a VA Form 10182 as timely filed with respect to the rating decisions issued in April 2019 and July 2019 have been met. 38 U.S.C. § 7105, 38 C.F.R. §§ 20.202, 20.203, 3.2500. 2. The criteria for withdrawal of the Veteran's appeal for service connection for an acquired psychiatric disorder, to include PTSD and depression, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for readjudicating the claim to establish service connection for OSA have been met. 38 C.F.R. § 3.2501. 4. The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 2000 to April 2008. The rating decisions on appeal were issued in April 2019 (OSA) and July 2019 (acquired psychiatric disorder) and constitutes initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Preliminarily, the Board notes that after a rating decision is issued, a veteran may elect an administrative review option on a form prescribed by the Secretary within the time allowed. 38 C.F.R. §§ 3.2500 and 20.203(b). The time limit to file an administrative review request is within the one year of the notice letter for the VA decision being appealed. 38 C.F.R. § 3.2500. Therefore, a veteran must elect an administrative review request by submitting the prescribed form within one year of a rating decision issued on or after February 19, 2019. Here, the notice letters for the April and July 2019 rating decisions were issued on April 19, 2019, and July 26, 2019, respectively. Thus, the Veteran had until April 19, 2020, and July 26, 2020, respectively, to file an administrative review request. 38 C.F.R. §§ 3.2500, 20.203. The Veteran did not timely file such a request as the VA Form 10182 was received in August 2021, over one year after the issuance of the notice letters. Where a VA Form 10182 is not timely filed, the Board may grant an extension of the time to file and accept the VA Form 10182 as timely filed where good cause has been shown. 38 C.F.R. § 20.203(c). At the November 2021 Board hearing before the undersigned Veterans Law Judge, the Veteran demonstrated good cause for the untimely filing, to include being unable to contact VA by telephone due to closure of VA regional offices as a result of the COVID-19 pandemic. Therefore, the Board finds good cause to extend the time for filing and accept as timely filed the August 2021 VA Form 10182 in this appeal for the April and July 2019 rating decisions. 38 C.F.R. § 20.203(c). Evidence was added to the claims file during a period of time when new evidence was not allowed, to include three correspondences regarding the onset of OSA. See Correspondences dated January 2021 and August 2021; March 2021, Buddy/Lay Statement. As the Board is deciding whether new and relevant evidence has been received to readjudicate and entitlement to service connection for OSA, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Dismissal 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Verbal withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." Acree v. O'Rourke, 891 F.3d 1009, 1013-15 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Hansen v. Brown, 9 Vet. App. 29, 32 (1996) (holding the veteran validly withdrew his claim when "there [was] no indication that the veteran was misguided or lacked understanding of the consequences of his actions"). During the November 2021 Board hearing, the Veteran withdrew from appeal the issue of service connection for an acquired psychiatric disorder, to include PTSD and depression. The Board finds that the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action because the representative clearly stated the issue to be withdrawn and there is no evidence that the Veteran, or his representative, were misguided or lacked understanding of the consequences of his actions. Accordingly, there remains no allegation of error of fact or law for appellate consideration with regard to the claim of service connection for an acquired psychiatric disorder, to include PTSD and depression, and the issue must be dismissed. DeLisio, 25 Vet. App. at 57. New and Relevant Evidence 2. Whether new and relevant evidence has been received to readjudicate entitlement to service connection for OSA. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). Relevant evidence is evidence that "tends to prove or disprove a matter in issue." 38 C.F.R. § 3.2501. As the statutory definition of "relevant" does not require that the evidence relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim; "new and relevant" evidence is a lower standard than the "new and material" evidence standard. In September 2012, the AOJ denied the Veteran's claim to establish service connection for OSA on the grounds that there was no in-service event, injury, incurrence, or treatment for OSA. The Veteran did not appeal, no new and material evidence was received within a year of the rating decision, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Accordingly, the claim may now be readjudicated on the merits only if new and relevant evidence has been received since the time of the prior adjudication. 38 C.F.R. § 3.2501. At the November 2021 Board hearing, the Veteran testified that OSA symptoms, to include cessation of breath, choking, and gaging while asleep began in 2003 while he was in active service and has been recurrent since that time. This evidence was not previously of record and raises a reasonable possibility of substantiating the claim for entitlement to service connection for OSA. Accordingly, readjudication of service connection for OSA is warranted. SERVICE CONNECTION 1. Entitlement to service connection for OSA. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). The Veteran seeks service connection for sleep apnea, contending that such began during service and has been recurrent since that time. The post-service evidence of record includes a letter from Dr. V.G. wherein he diagnosed mild OSA after a June 2011 sleep study and noted the long-term medical complications associated with untreated sleep apnea. See July 2011, Private treatment record. At the November 2021 Board hearing, the Veteran testified that he first noticed sleep issues in 2003 during service which included waking up gasping for breath and feeling like he was choking while asleep. Further, the Veteran stated a fellow servicemember informed him during active service that he stopped breathing in his sleep. The Veteran also stated that his wife shook him awake and informed him that he stopped breathing while asleep. In light of the evidence above, the Board finds that the Veteran's OSA became manifest while he was on active duty. The Board finds the lay statements of record indicating that sleep problems began during active service and have been recurrent since discharge, to be competent, credible, and highly probative. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, medical evidence demonstrates a diagnosis of OSA. As such, although a VA examiner has not rendered an opinion regarding the onset and etiology of the Veteran's sleep apnea, the Board concludes that the evidence shows that the disability became manifest while the Veteran was on active duty and thus was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Resolving all reasonable doubt in the Veteran's favor, service connection for OSA is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Straughn, Shavonne 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.