Citation Nr: 21013815 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-23 725 DATE: March 10, 2021 ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for sleep apnea. 2. Whether new and material evidence has been received to reopen the claim for service connection for depression. 3. Entitlement to service connection for sleep apnea, to include as secondary to major depressive disorder. 4. Entitlement to service connection for an acquired psychiatric disorder, variously claimed as depression and major depressive disorder (MDD), and to include as secondary to sleep apnea. ORDER New and material evidence sufficient to reopen the claim of service connection for sleep apnea has been received, and to that extent only, the claim is granted. New and material evidence sufficient to reopen the claim of service connection for depression has been received, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to major depressive disorder, is remanded. Entitlement to service connection for an acquired psychiatric disorder, variously claimed as depression and major depressive disorder (MDD), and to include as secondary to sleep apnea is remanded. FINDINGS OF FACT 1. A May 2012 rating decision denied service connection for sleep apnea. The Veteran was notified of his rights, but did not express timely disagreement or submit new evidence within one year. That decision became final. 2. The evidence associated with the record since the May 2012 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for sleep apnea. 3. A November 2007 rating decision denied service connection for depression. The Veteran was notified of his rights, but did not express timely disagreement or submit new evidence within one year. That decision became final. 4. The evidence associated with the record since the November 2007 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for depression. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for sleep apnea has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 2. New and material evidence sufficient to reopen the claim of service connection for depression has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1981 to April 1985, with an additional period of reserve service. This matter is before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in September 2020. A copy of the hearing transcript has been associated with the claims file. At the September 2020 Hearing, the Veteran’s representative clarified that his theory of entitlement now is of sleep apnea as secondary to major depressive disorder. See September 2020 Hearing Transcript, p. 3. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. The Board has recharacterized the appeal as encompassing the issue on the title page. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Finality of Service Connection Claims 1. Whether new and material evidence has been received to reopen the claim for service connection for sleep apnea 2. Whether new and material evidence has been received to reopen the claim of service connection for depression The Board incorporates its discussion from the sections above by reference. By way of history, service connection for depression was denied in a November 2007 rating decision. Service connection for sleep apnea was denied in a May 2012 rating decision. The issue was revisited in September 2012, and the RO confirmed and continued the previous denial. The RO reopened and denied this sleep apnea claim in November 2013. Also in November 2013, the RO implicitly denied reopening the claim for service connection for depression, now claimed as secondary to sleep apnea. The Veteran was informed of the decisions and of the right to appeal. He did not appeal or submit new and material evidence within one year of notification. These decisions are final. At the time of the decisions, the record included the claims, lay statements, treatment records, and the service records. There was no accepted evidence of sleep apnea or depression in service or as secondary to service-connected disability. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. In December 2013 VA received the Veteran’s application to reopen the claims of service connection for sleep apnea and depression. The additional evidence presented includes lay buddy statements and post-service treatment reports from hospitals and medical centers. The evidence establishes that the Veteran has sleep apnea and developed behavioral changes after separation, possibly attributable to service. As a lack of evidence supporting the presence of a nexus was one of the bases for the previous denial of the claim, this evidence is new and material under 38 C.F.R. § 3.156. In light of this new and material evidence, the Veteran’s claim of service connection for sleep apnea and depression are reopened. The merits of these reopened claims are discussed in the Remand section below. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In light of the Veteran and his representative’s contentions, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. By way of legal criteria, to establish service connection a Veteran must generally 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for sleep apnea, to include as secondary to major depressive disorder, is remanded. By way of background, sleep apnea is defined as transient periods of cessation of breathing during sleep. The two primary types are central sleep apnea and obstructive sleep apnea. See Dorland’s Illustrated Medical Dictionary, 118 (31st ed. 2007). Obstructive sleep apnea is defined as sleep apnea resulting from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep. Id. By way of history, the Service Treatment Records (STRs) include a January 1985 Report of Medical Examination from separation. It disclosed a clinically normal evaluation of the head, face, nose, sinuses, mouth, throat, lungs, and chest. In the contemporaneous Report of Medical History, the Veteran denied ear, nose, or throat trouble and frequent trouble sleeping. Next, VA treatment records include a September 21, 2011 VA Sleep Medicine Consultation. It shows that the Veteran was initially seen in the sleep clinic on April 15, 2011 with complaints of snoring, apneic events, obesity, and hypertension. He had a sleep study completed no June 2, 2011 showing severe obstructive sleep apnea. He was later issued a REMstar machine. Next, a medical opinion from Dr. K. L. at the Los Angeles VA Medical Center (VAMC) is of record. Several copies have been submitted throughout the appeals period, most recently received on September 1, 2020. The medical opinion itself is undated. It shows that the Veteran has a documented history of sleep apnea since June 2011. The physician spoke to the Veteran and reviewed “testimonials,” referencing the numerous lay buddy statements. The physician ultimately rendered a positive nexus opinion. However, there is not an explanation based upon review of the STRs or an otherwise complete rationale. Ongoing lay buddy statements establish that the Veteran snored and appeared to experience sleep disturbances during and after service. Recently, the Veteran testified at the September 2020 Hearing. He recounted being woken up during service because of his snoring that kept everyone else awake. He was not aware of this problem until his bunkmates told him that it kept them from sleeping. The Veteran would later feel that he was not rested. He was short tempered at the time, with a low threshold for frustration and anger. See September 2020 Hearing Transcript, pp. 5-6. The Veteran reported that he kept this to himself, even though he believes sleep apnea manifest during basic training. Later, the condition progressed to the point where he was told that he would stop breathing. Id. at p. 7. He did not report this to medical staff because he did not know the condition even existed. He thought he was just a loud snorer. Id. He continued snoring during subsequent reserve service. H eventually followed up and was diagnosed with sleep apnea in 2011. Id. at p. 9. The Veteran and his representative clarified that his theory of entitlement includes sleep apnea as secondary to major depressive disorder. Id. The Veteran testified that he has not been provided with a positive nexus opinion by a medical professional for either direct or a theory of secondary service connection for sleep apnea based upon reported instances harassment in service. Id. at pp. 11-12. In the instant case, VA must provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is a history of diagnosed sleep apnea with the VA treatment records, and a series of lay statements supporting an onset prior to this diagnosis. The VA examiner should consider the Veteran’s lay history and render a nexus opinion including for the theory of secondary service connection, as articulated at the September 2020 Hearing. Therefore, to fully address the Veteran’s contentions, and to assist in fully developing the Veteran’s claim, a VA examination with medical opinion for sleep apnea to include as secondary to major depressive disorder is necessary. Lastly, outstanding VA treatment records since March 2017 should be included in the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, the Veteran may also choose to submit any updated private medical opinions. 2. Entitlement to service connection for an acquired psychiatric disorder, variously claimed as depression and major depressive disorder (MDD), and to include as secondary to sleep apnea is remanded. The Board incorporates its discussion from the sections above by reference. By way of background, the January 1985 Report of Medical Examination from separation disclosed a clinically normal psychiatric evaluation. In the contemporaneous Report of Medical History, the Veteran denied nervous trouble of any sort and depression or excessive worry. Next, a medical opinion dated July 11, 2013 from Dr. L. S. at the Los Angeles VA Medical Center (VAMC) is of record. Several copies were submitted, most recently on September 1, 2020. The opinion itself is undated. Dr. L. S. writes that the Veteran has a documented history of mental health treatment for major depression and substance use disorder since 1992. The psychologist specified that the Veteran has maintained sobriety since 2007. For a nexus opinion, it only shows, “However, Mr. [Veteran’s] mental condition and treatment history has fluctuated in severity throughout his life, including prior to, during, and post-military service ranging from mild to severe depression in relationship to his substance use history and psychosocial stressors.” This nexus opinion is not conclusive. Ongoing lay buddy statements document friends and relatives observing behavioral changes during and after service. Recently, the Veteran testified at the September 2020 hearing regarding his experiences in service and subsequent behavioral changes. The Veteran testified that he experiences depression due to assaults he experienced. He felt targeted based on his ethnicity, depressed, and alone. See September 2020 Hearing Transcript, p. 10. The majority of airmen in his flight unit were white and he is Hispanic. He felt harassed the whole time, which kept him awake at night. There were three men who would harass and haze him. He experienced sleepless nights. He did not report harassment to superior officers because fear took over, and he thought it would be detrimental. Id. at p. 11. Later, he clarified that his past substance abuse problem was actually a manifestation of major depressive disorder because he was self medicating. Id. at pp. 14-17. The VLJ identified outstanding historical treatment records from the West Los Angeles VA Medical Center (VAMC). Days later, on September 9, 2020, the Veteran submitted copies of VA treatment records from September 9, 1992 to December 8, 1992. The cover page shows that they are from a VA Residential Treatment Center. Unfortunately, some of the scanned pages are illegible. Indeed, VA must provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To fully address the Veteran’s contentions, and to assist in fully developing the Veteran’s claim, a VA examination with medical opinion is necessary for any acquired psychiatric disorder to include as secondary to sleep apnea. The VA examiner should also provide a nexus opinion for the Veteran’s theory of secondary service connection, as articulated at the September 2020 Hearing. The VA examiner should consider the history of various mental health diagnoses and treatment, and a series of lay statements supporting an onset prior to this diagnosis. Lastly, a complete set of historical VA treatment records from the West LA VAMC from 1992 should be obtained and associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, the Veteran may also choose to submit any updated private medical opinions. The matters are REMANDED for the following action: 1. Obtain updated copies of the Veteran’s VA treatment records since March 2017, and associate them with the Veteran’s claims folder. 2. Obtain a set of the Veteran’s past VA treatment records from the West Los Angeles VA Medical Center (VAMC), including from 1992. 3. Please schedule the Veteran for a VA examination to determine the nature and etiology of any sleep apnea disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. The VA examiner should also opine whether any diagnosed sleep disability is proximately due to, the result of, or aggravated by the Veteran’s service-connected disabilities, in addition to claimed depression or major depressive disorder (MDD). Attention is invited to the lay buddy statements and the private medical opinion from Dr. K. L. The examiner should provide a rationale for all opinions expressed. 4. Please schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorder, variously claimed as depression and major depressive disorder. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. The VA examiner should also opine whether any diagnosed acquired psychiatric disorder is proximately due to, the result of, or aggravated by the Veteran’s service-connected disabilities, in addition to claimed sleep apnea. Attention is invited to the lay buddy statements and the July 2013 private medical opinion from Dr. L. S. The examiner should provide a rationale for all opinions expressed. 5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.