Citation Nr: 21006697 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-52 888 DATE: February 4, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for obstructive sleep apnea (OSA). Entitlement to service connection for OSA is granted. FINDINGS OF FACT 1. A February 2016 rating decision denied service connection for obstructive sleep apnea; the Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the final February 2016 rating decision is neither cumulative or redundant of evidence already of record and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for OSA. 3. The Veteran’s OSA had its onset during his active duty service. CONCLUSIONS OF LAW 1. The February 2016 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for OSA. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for OSA are met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1954 to August 1957 and from October 1959 to October 1976, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified before the undersigned. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.902. New and Material Evidence 1. New and material evidence has been received to reopen the claim of entitlement to service connection for OSA. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as 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(a). The RO denied the Veteran’s initial claim for service connection for OSA in a February 2016 rating decision based on a lack of evidence of an in-service incurrence and lack of a nexus between the Veteran’s service-connected heart disability and his OSA. The Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. Thus, the February 2016 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Evidence received more than one year since the final February 2016 rating decision constitutes new and material evidence regarding the Veteran’s OSA service connection claim. Specifically, in December 2020, the Veteran submitted a statement from his pulmonologist, who opined that it was highly likely the Veteran’s current OSA had its onset while the Veteran was still on active duty. This evidence is new, as it was not previously considered by the RO. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claims. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for OSA and the claim is reopened. Service Connection 2. Entitlement to service connection for OSA is granted. The Veteran asserts that his OSA either had its onset during active duty or is otherwise related to his active duty service, to include as secondary to his service-connected coronary artery disease status-post coronary artery bypass graft. See April 2017 VA Form 21-526EZ, January 2018 Notice of Disagreement (NOD). The Board agrees that direct service connection is warranted. Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Here, the Veteran has a current diagnosis of obstructive sleep apnea. See July 2015 sleep study; August 2018 Disability Benefits Questionnaire (DBQ). Therefore, element one of service connection is met. As to the second element, in-service incurrence of a disease or injury, the Veteran reports that while still on active duty, his spouse would make him sleep on the couch often due to his loud snoring. See January 2018 NOD. The Veteran’s spouse, who he married in 1960, stated that the Veteran’s sleep was altered after his return from service in Vietnam in 1971. See January 2018 lay statement from D.D. Specifically, the Veteran’s spouse stated she recalled the Veteran gasping for breath, snoring, and that she would often shake him to ensure that he was still alive. Id. The Veteran’s daughter recalled that around 1972, concurrent with her high school years, she remembered being able to hear her father’s snoring through walls. See January 2018 lay statement from S.H. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the Veteran, his spouse, and his daughter are competent to report the easily observable symptoms of snoring, cessation of breathing, and gasping for air and has no reason to doubt their credibility. Accordingly, the Board finds that the Veteran began to experience symptoms of OSA (snoring, gasping for air, cessation of breathing) while still on active duty and element two of service connection is met. Regarding element three, or nexus, there is evidence both against and in favor of the claim. Against the claim is the claim is the August 2017 VA examiner’s opinion. The VA examiner concluded that the Veteran’s OSA was not proximately caused by his heart disability but failed to discuss whether the Veteran’s heart disability and its attendant coronary artery bypass graft times two aggravated the Veteran’s OSA and is inadequate in this regard. The August 2017 VA medical opinion is also inadequate as the examiner failed to address the Veteran’s lay statements wherein he describes experiencing symptoms of snoring in-service and being told that he snores loudly and has shortness of breath during sleep. In favor of the claim is the December 2020 private nexus statement. The Veteran’s Board Certified Sleep Disorder Specialist concluded, based on a review of the Veteran’s pertinent records and his treatment of the Veteran for the last several years, that it was highly likely that the Veteran’s OSA began while he was still on active duty and continued to the present. The Board notes the private pulmonologists opinion is consistent with the lay evidence of record, the symptoms for which the Veteran was originally referred for a sleep study, and symptoms that eventually served as a basis for the OSA diagnosis (snoring). See also June 2015 private treatment records. Additionally, nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Moreover, as explained in Maples v. Wilkie, No. 18-2016 (Vet. App. Feb. 11, 2019) (mem dec) (Falvey, J.), lay evidence can be sufficient to support a claim for service connection for sleep apnea. Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Accordingly, the Board finds that the December 2020 nexus statement is probative, the nexus element is met, and entitlement to service connection for OSA is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.