Citation Nr: 21011976 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 19-03 385A DATE: March 3, 2021 ORDER New and material evidence having been received, the claim for service connection for sleep apnea is reopened, and to that extent only, the appeal is granted Service connection for sleep apnea is granted. FINDINGS OF FACT 1. A May 2009 rating decision denied service connection for sleep apnea. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for sleep apnea and raises a reasonable possibility of substantiating the claim. 3. At his February 2021 Board hearing, the Veteran provided competent and credible testimony that his sleep apnea is reasonably shown to be related to/caused by active service. CONCLUSIONS OF LAW 1. The May 2009 rating decision that denied service connection for sleep apnea is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received; the claim of service connection for sleep apnea is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria have been met for service connection for sleep apnea. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to January 1988, from October 2001 to October 2002, and from January 2003 to January 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In February 20201, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. The Board notes that the Veteran’s sleep apnea claim was originally denied in a May 2009 rating decision. In March 2016, he submitted a claim to reopen the issue of service connection for sleep apnea. In July 2016 the Veteran’s claim was denied because the RO reported that he had not submitted new and material evidence. In September 2016, the Veteran submitted a July 2008 sleep study that does not appear to have been previously in the record. Because of this, the July 2016 rating decision never became final. Despite this, the Veteran tried to reopen his sleep apnea claim in September 2016. A November 2016 rating decision denied the claim again, finding that the Veteran had not submitted new and material evidence. In January 2016, the Veteran submitted a private sleep exam. This evidence also does not appear to have been previously in the record. Because of this, the November 2016 rating decision never became final. In January 2017, the Veteran submitted a claim to reopen the issue of service connection for sleep apnea for the third time. In March 2017, the RO denied the claim noting that the Veteran had not submitted new and material evidence. In July 2017, the Veteran submitted a Notice of Disagreement to the March 2017 denial. Because the July 2016 and November 2016 rating decisions never became final, even though it is the March 2017 rating decision that is on appeal, the Veteran’s sleep apnea claim extends back to March 2016, when he first attempted to reopen his claim for service connection for sleep apnea. New and Material Evidence New and material evidence has been received to reopen the claim for service connection for sleep apnea. 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. § 7105. However, 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. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, service connection for sleep apnea was denied in a May 2009 rating decision. That appeal was not perfected nor was new and material evidence received within the appeal period. 38 U.S.C. § 7105. Evidence received since that decision includes a July 2008 sleep study, a January 2017 private sleep examination, and the Veteran’s February 2021 Board hearing testimony. This evidence is new to the record, relates to previously unestablished facts to support the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened, and any deficiencies of notification and development in this case will be addressed on remand. Service connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309 Service connection for sleep apnea is granted. Factual Background In a July 2008 private sleep study, the Veteran reported that he returned from Iraq and continued to have disturbed sleep and hyperarousal. The Veteran was provisionally diagnosed with sleep apnea. In a March 2011 Independent Medical Opinion Letter Request for Undiagnosed Illness, it was conceded that the Veteran had qualifying Gulf War service per the VA regulations. It was also noted that the Veteran experienced sleep disturbance and sleep apnea. In an accompanying March 2011 Department of the Army memorandum, it was determined that the Veteran did not meet the medical retention requirements. One of the conditions listed that resulted in this determination was sleep apnea. In a December 2016 private polysomnography test, the Veteran reported a history of “excessive daytime sleepiness, interrupted sleep, snoring, and waking up gasping for breath.” The polysomnography test documented “severe, mainly position-related obstructive sleep apnea with oxyhemoglobin desaturation.” CPAP titration was recommended. In a July 2017 private opinion, the Veteran’s physician noted that the Veteran had been his patient for over 10 years. During that time, he experienced sleep disturbances. The examiner opined that it was at least as likely as not that these symptoms were related to his Gulf War service. No rationale was provided. In his February 2021 hearing, the Veteran testified that when he was deployed in 2003, he had severe fatigue. He stated that his service buddies were waking him up and telling him he was stopping breathing during his sleep. The Board notes that the Veteran submitted multiple lay statements, from his spouse and from his service buddies, all confirming that the Veteran had difficulty sleeping and would stop breathing. Analysis Although a causal relationship has not been demonstrated through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds that the Veteran’s statements, the other lay statements of record, and his February 2021 testimony, combined with the July 2008 sleep study, the March 2011 Department of the Army memorandum, and the December 2016 private polysomnography test, leads the Board to determine that it is at least as likely as not that the Veteran’s current sleep apnea is related to his active service. The Board finds that the evidence demonstrates that the Veteran’s sleep problems, which began during active service and continuing to the present, to be competent and credible evidence of continuing symptoms since active service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board notes that, under the continuity of symptoms provision, “symptoms, not treatment, are the essence of any evidence of continuity of symptom[s].” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (referencing 38 C.F.R. § 3.303(b)). Based on the above analysis, the Board to determine that at the very least, the evidence is evenly balanced for and against (“in relative equipoise”) as to whether the Veteran’s sleep apnea is related to active service. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.