Citation Nr: 21009382 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-51 917 DATE: February 22, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for sleep apnea is reopened. Entitlement to service connection for hyperthyroidism is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to gastrointestinal reflux disease (GERD) is remanded. Entitlement to service connection for restless leg sleep syndrome is remanded. FINDINGS OF FACT 1. In January 2014, the RO denied service connection for sleep apnea; the Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision is final. 2. Evidence received since January 2014 is new and material because it relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for sleep apnea and raises a reasonable possibility of substantiating the claim. 3. The Veteran had active duty in the Republic of Vietnam during the period 1970-71. CONCLUSIONS OF LAW 1. The January 2014 rating decision which denied service connection for sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2019). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria for entitlement to service connection for hypothyroidism have been met. 38 U.S.C. § 1101, 1110, 1113, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty as a commissioned officer in the United States Navy from June 1969 to September 1977 with service in the Republic of Vietnam for which he was awarded the Air Medal and Combat Action Ribbon. He also served on active duty from January 1985 to April 1986 with additional Reserve service until July 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2015 and June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A copy of that proceeding has been associated with the Veteran’s claims file. The Board has recharacterized an issue as “restless leg sleep disorder” in light of the benefits sought by the Veteran and raised in the evidence of record. When a claimant makes a claim, he or she is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104(b). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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. 38 C.F.R. § 3.156(a). 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 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). Further, 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, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Sleep apnea In the January 2014 rating decision, in which the RO denied service connection for sleep apnea, the RO considered evidence consisting of a VA Form 21-526, service treatment records (STRs), VA treatment records, private treatment records from several providers, service personnel records, and four lay statements. The RO indicated that the evidence failed to reveal in-service incurrences or injuries, from which a nexus could be drawn to the Veteran’s sleep apnea, which was diagnosed in 2007. Since January 2014, VA has received new and material evidence consisting of additional lay statements, an article about obstructive sleep apnea, and hearing testimony in which the Veteran testified as to lost STRs and the chronicity of sleep apnea. When considered within the low evidentiary standards laid out in Shade, this competent evidence is material to previously unestablished facts—in-service incurrences or predicates. Hence, this evidence raises a reasonable possibility of substantiating the sleep apnea service connection claim. See 38 C.F.R. § 3.156(a). Therefore, the evidence is new and material and the Veteran’s service connection claim for sleep apnea is reopened. Service Connection The Veteran contends that he warrants service connection for hyperthyroidism due to herbicide exposure in active duty service. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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 or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). A Veteran who “during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). “Service in the Republic of Vietnam includes service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” Id. For Veterans who have been exposed to an herbicide agent (to include Agent Orange) during active service, presumptive service connection is available for certain enumerated diseases. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The Veteran’s had active service in the Republic of Vietnam, thus he is presumed to have been exposed to an herbicide agent. See 38 C.F.R. § 3.307 (a)(6)(iii). Analysis A review of both the private and VA treatment records discloses that the Veteran has been diagnosed and treated for hypothyroidism. Hypothyroidism has been added as an enumerated disease under 38 U.S.C. § 1116(a)(2); see Public Law 116-283 (enacted over veto Jan 1, 2021). Therefore, service connection for hypothyroidism is granted. REASONS FOR REMAND Although the Board regrets an additional delay, a remand is necessary to ensure that due process is followed and that there is a full record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5102; 38 C.F.R. § 3.159. Sleep apnea GERD Restless leg syndrome The Veteran contends that these three current disabilities were incurred in, aggravated by, or otherwise attributable to, active duty service. In a June 2014 lay statement, the Veteran’s ex-spouse wrote that she had been married to the Veteran for the entire period that he was on active duty in the U.S. Navy and during the entire period that he served as a Naval Reservist. Throughout these periods, the ex-spouse reported that the Veteran complained of a “burning sensation” in his stomach and esophageal area; chest pain; and sleep disturbance. The Veteran took antacids, drank dissolved baking soda, and slept with his head in an elevated position. This ex-spouse, who the Veteran indicated is a nurse-professor and a PhD in public health (See April 2013 statement; February 12, 2020 Hearing Transcript, p. 5) also took note of the Veteran’s symptoms that she found to be related to sleep apnea. The Veteran was a restless sleeper; suffered frequent bouts of insomnia; snored and snorted loudly; and experienced “leg jerks” when he attempted to fall asleep. Again, the ex-spouse wrote that these symptoms occurred throughout the entire period that he was on active duty in the U.S. Navy and during the entire period that he served as a Naval Reservist. In a January 2020 letter, a private physician noted a review of medical records and determined that the Veteran had GERD in 1983 but did not find that it started on active duty or was caused or aggravated by any aspect of Reserve training. In pertinent part, an April 19, 2019 letter from Dr. I., a physician at a private sleep disorders center, stated that Veteran’s latest polysomnogram of September 2019 shows that he has mild obstructive sleep apnea. Dr. I. further wrote that the Veteran has suffered from sleep apnea “during his adult life prior to 1986” through the time of the instant letter. Treatment records associated with Dr. I.’s letter disclose that both GERD and restless leg syndrome were assessed upon a polysomnogram and addressed in October 2018 medical encounter notes. A medical examination or medical opinion 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 a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. Id. The Board recognizes that the Veteran was afforded a VA examination in April 2017, in which a clinician rendered a negative nexus opinion as to whether sleep apnea, GERD, and/or restless leg syndrome are secondary to posttraumatic stress disorder (PTSD). However, the issue of continuity raised in the Veteran’s spouse’s statement and Dr. I.’s letter were not included within the clinician’s rendering of his opinion. Thus, under the third prong of McClendon, as noted above, the Board finds that an additional VA examination is necessary in order for the Board to make a fully informed decision on these three claims. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any additional records of treatment for sleep apnea, GERD, and restless leg sleep disorder. If obtained, associate these treatment records with the claims file. 2. Obtain and associate any updated VA treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 3. Arrange for a VA examination with an appropriate clinician or clinicians. The evidentiary record must be made available and reviewed by the clinician(s). Attention is called to the service treatment records for both active duty and Reserve Duty Upon completion of a review of the evidence, the clinician is asked to render an opinion as to the following inquiry: a. Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea, GERD, and/or restless leg syndrome were incurred in, aggravated by, or otherwise attributable to, active duty or Reserve training duty or are caused or aggravated by the Veteran’s service-connected posttraumatic stress disorder (PTSD). For all opinions expressed, complete rationales should be provided. The clinician must reconcile any opinion with all other clinical evidence of record and the Veteran’s and other lay evidence. The Veteran is competent to report his symptoms and history and his ex-spouse identified herself as a medical professional. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, she/he must provide an explanation for such rejection. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.