Citation Nr: 21011988 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-55 958A DATE: March 3, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for sleep apnea is reopened. Service connection for sleep apnea is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued May 2012, the Veteran was denied service connection for sleep apnea. 2. The evidence associated with the claims file subsequent to the May 2012 decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for sleep apnea. 3. The preponderance of the evidence does not support that the Veteran’s sleep apnea is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The May 2012 rating decision that denied service connection for sleep apnea is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1100. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1131, 5107(b); 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 United States Marine Corps from September 1980 to March 1982. This case was previously before the Board in June 2019. The Board denied the appeal to reopen the Veteran’s claim for service connection for sleep apnea. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated that part of the Board’s June 2019 decision. The parties agreed that the Board erred when it did not provide an adequate statement of reasons or bases for its determination that new and material evidence had not been submitted to reopen the claim for service connection for sleep apnea. Specifically, the Board did not adequately consider private medical evidence and the Veteran’s lay statements as to an in-service incurrence. The case is now returned for appellate review. In its June 2019 decision, the Board also remanded the appeal of the issue of entitlement to an initial compensable rating for bilateral hearing loss for issuance of a statement of the case (SOC). The agency of original jurisdiction (AOJ) provided the Veteran and his representative with an SOC in September 2020. Therefore, the Board finds there has been substantial compliance with the June 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2020, the AOJ also issued a rating decision assigning a 20 percent evaluation for bilateral hearing loss effective August 27, 2020. Because this rating was not a total grant of benefits, the claim for an increased initial rating remains before the Board. AB v Brown, 6 Vet. App. 35, 39 (1993). Reopening Sleep Apnea Claim Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran was denied service connection for sleep apnea in a May 2012 rating decision because the evidence of record did not show the Veteran’s sleep apnea was incurred in service. The Veteran did not timely appeal the May 2012 rating decision, and no new evidence was received within one year. Therefore, that decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.156(b). Service connection for sleep apnea may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the prior final decision, the Veteran submitted lay statements detailing an in-service nose injury and a March 2013 private disability benefits questionnaire (DBQ). Additionally, updated VA treatment records and medical treatment records furnished by the Social Security Administration (SSA) were associated with the file. Initially, the Board notes the treatment records associated with the file since the May 2012 decision cover follow up visits for treatment of the Veteran’s sleep apnea. The records note the Veteran has a diagnosis of sleep apnea and is followed by the VA for treatment. The records also note the Veteran’s past medical and surgical history, his medications, symptoms of his sleep apnea, and the date of his last visit. The Board notes that with the exception of the dates of treatment, the information contained in the medical record was of record at the time of the May 2012 rating decision. Similarly, the Veteran’s lay statements regarding his nose injury have been of record since 1986. In January 1987, the Veteran was denied service connection for a nose injury and difficulty breathing. At that time, he described the same in-service nose fractures which eventually required surgical repair. In sum, the majority of the evidence received since May 2012 is cumulative or duplicative of the evidence on file prior to that time and stems from the same factual basis. However, the March 2013 private DBQ was not of record at the time of the prior final decision. Thus, the evidence is new. Moreover, when considered with the Veteran’s lay reports of in-service nose fractures, the March 2013 private DBQ raises a reasonable possibility of a nexus between the in-service injury and the current disability. Hence, the low threshold for meeting the criteria for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for sleep apnea is reopened. 38 C.F.R. § 3.156(a). The Board notes that the AOJ adjudicated the Veteran’s claim for service connection for sleep apnea on the merits and provided him with notice of what was needed to substantiate the claim, an examination regarding this claim, as well as obtaining all identified records. Thus, the Board finds that there is no prejudice to the Veteran in the Board addressing the reopened claim on the merits. Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that when the Board addresses a question not addressed by the [AOJ], “it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby”). Merits of Service Connection for Sleep Apnea Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran 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 or aggravated during service’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc).   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 Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). \ The Veteran contends that his obstructive sleep apnea was caused by several in-service injuries to his nose. In the alternative, the Veteran contends that his sleep apnea is proximately due to or aggravated by posttraumatic stress disorder (PTSD). At the outset, the Board notes that the Veteran is not service connected for any acquired psychiatric disorders, to include PTSD. Moreover, the Veteran currently has not been diagnosed with PTSD. Therefore, secondary service connection is not for consideration. See 38 C.F.R. § 3.310. There is no dispute that the Veteran is diagnosed with obstructive sleep apnea. The Veteran has competently and credibly stated that he fractured his nose during service. Therefore, the first element and second elements of direct service connection, a current diagnosis and an in-service incurrence of an event, injury or disease, are established. Nevertheless, the claim must fail for lack of a nexus. As noted, the Veteran submitted a March 2013 DBQ from Dr. D.G., a private physician. Dr. D.G. did not provide an opinion as to the etiology of the Veteran’s sleep apnea. However, under “additional diagnoses that pertain to the diagnosis of sleep apnea”, he noted “sinus operation at VA hospital” and “history of nose fracture in the military.” The probative value of this evidence is diminished by the private physician’s failure to support his findings with any rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was afforded a VA examination in October 2017. The examiner opined it was less likely than not that the Veteran’s obstructive sleep apnea was etiologically related to his in-service nose injuries. The examiner explained the physiological and neurological mechanisms that caused and impacted sleep apnea and concluded that a distant nose injury was highly unlikely to be instrumental in the development of sleep apnea. The Board finds the opinion probative as it was provided by a medical professional competent to render an opinion regarding whether the Veteran’s sleep apnea was etiologically linked to his active duty service. Moreover, the opinion reflected reasoned consideration of the evidence of record and included sufficient explanation. In light of the negative nexus opinion and lack of an adequate positive opinion to contradict the negative evidence, there is no basis for a grant of service connection for the Veteran’s sleep apnea. To the extent that the Veteran advances his own interpretation of his medical conditions indicating that his current disability is related to service, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the probative value of the Veteran’s general assertions regarding the etiology of his sleep apnea is outweighed by the probative value of the specific, reasoned opinion of the physician who provided the October 2017 VA opinion. Moreover, as previously discussed, the Board finds the Veteran not competent to provide an etiology as to his sleep apnea. Because the preponderance of the evidence weighs against the claim, the claim of entitlement to service connection for sleep apnea is denied.   REASONS FOR REMAND Respecting the Veteran’s bilateral hearing loss claim, additional VA treatment records were associated with the claims file since June 2019. However, it appears that relevant records remain missing. Specifically, a VA treatment record dated March 27, 2018 indicated that an audiogram was created in connection with the audiology consultation performed on that date. Similarly, a March 27, 2019 VA treatment record indicate a 15-decibel threshold decrease since the March 2018 audiogram. The treatment provider noted that the audiograms would be viewable under the “Tools menu.” The audiograms associated with the March 2018 and March 2019 consultations have not been made a part of the Veteran’s electronic claims file. Thus, a remand is necessary to obtain the missing audiograms in order to properly adjudicate the Veteran’s claim. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all VA and non-VA health care providers, other than those already associated with the claims file, and authorize VA to obtain non-VA records. Updated VA treatment records should also be obtained. Specifically, obtain the audiograms associated with the March 27, 2018 and March 27, 2019 audiology consultations and associate them with the Veteran’s electronic claims file. Efforts to obtain these records must continue until they are obtained; unless it is reasonably certain the records do not exist or that further efforts to obtain them would be futile. 2. When the development requested has been completed, the case should be reviewed by AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.