Citation Nr: 21015335 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-44 085 DATE: March 17, 2021 ORDER The petition to reopen the claim of service connection for obstructive sleep apnea is granted. Service connection for obstructive sleep apnea as secondary to service-connected posttraumatic stress disorder (PTSD) and gastroesophageal reflux disease (GERD) is granted. Service connection for a skin disorder is denied. REMANDED The issue of an initial compensable rating from May 19, 2011 and continuing thereafter for a right arm scar is remanded. FINDINGS OF FACT 1. In March 2009, VA denied a claim of service connection for obstructive sleep apnea. The Veteran was informed in writing of the adverse determination, his appellate rights and although the Veteran submitted a notice of disagreement (NOD) and a statement of the case (SOC) was issued, the Veteran did not submit a substantive appeal. 2. The documentation submitted since the March 2009 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for obstructive sleep apnea. 3. With resolution of the doubt in his favor, the Veteran’s obstructive sleep apnea was caused by his service-connected PTSD and GERD. 4. The Veteran does not have a skin disorder. CONCLUSIONS OF LAW 1. The March 2009 rating decision that denied the claim of service connection for obstructive sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the Veteran’s claim of service connection for obstructive sleep apnea has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to establish entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. 4. The criteria to establish entitlement to service connection for a skin disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1986 to August 1995 and in the U.S. Army Reserve from April 2006 to June 2007 and May 2009 to May 2011, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Atlanta, Georgia Regional Office (RO). In May 2019, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Reopening – Obstructive Sleep Apnea Generally, a claim that has been denied in an un-appealed RO decision is final and may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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); Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). As an initial matter, in May 2019, the Board remanded the claim – without conducting a reopening analysis – for the RO to obtain relevant Federal records. In new and material evidence claims, the duty to assist requires VA to assist with obtaining relevant Federal records and there is no requirement that the issue of reopening the claim be decided immediately because the issue can be remanded without reopening to obtain relevant Federal records. 38 C.F.R. § 3.159(c)(4)(iii). In March 2009, the RO denied the claim of service connection for obstructive sleep apnea (OSA). The RO found that there was no in-service event, injury or disease and no nexus relating the Veteran’s OSA to service. The evidence in March 2009 included service treatment records (STRs), VA treatment records, the Veteran’s statements and a statement from the Veteran’s spouse. STRs were silent for complaints or contemporaneous reports pertaining to trouble sleeping. An undated service medical examination noted no neurological abnormalities. In his August 2004 service medical history report, the Veteran answered in the affirmative to the question of whether he then had, or once had frequent trouble sleeping. An April 2008 VA treatment record reflects a diagnosis of a “sleep disorder” and the Veteran was advised to undergo a sleep study. In June 2008, the Veteran underwent a sleep study that revealed OSA. A July 2008 VA treatment record reflects a diagnosis of OSA. In an October 2008 statement, the Veteran reported experiencing trouble sleeping while he was stationed in Kuwait and that at the time of the statement, his wife monitored his sleeping behavior. In an October 2008 statement, the Veteran’s spouse reported having observed the Veteran experience trouble with breathing, snoring and sleeping. The Veteran was informed of this decision and apprised of his appellate rights, and although the Veteran submitted a NOD and was issued an SOC, the Veteran did not submit a substantive appeal to perfect his appeal. Therefore, the March 2009 rating decision became final. 38 C.F.R. § 20.1103. The evidence received since the March 2009 rating decision includes an April 2011 statement from the Veteran attributing his OSA to service in Southwest Asia; a March 2011 post-deployment health assessment reflecting the Veteran’s affirmative answer to the question of whether he attended sick call due to trouble sleeping and that he then-continued to experience trouble with sleeping; VA sleep studies reflecting a diagnosis of OSA; a June 2020 non-VA positive etiology opinion; and an August 2020 VA negative etiology opinion. The June 2020 non-VA examiner opined that the Veteran’s OSA was caused by his service-connected PTSD and GERD. The evidence raises a reasonable possibility of substantiating the claim because the March 2009 rating decision denied the claim due to the Veteran not having a nexus which was a specified basis for the last disallowance of the claim. The evidence is new and relates to an unestablished fact – a nexus – that is necessary to substantiate the Veteran’s claim. Therefore, the claim of service connection for OSA is reopened. Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Obstructive sleep apnea A June 2008 and February 2019 VA sleep study revealed obstructive sleep apnea. The issue of a current disability is not in dispute. The claim will be granted. In an October 2008 statement, the Veteran’s spouse reported having observed the Veteran experience trouble with sleeping, breathing and snoring for the past year. In a March 2011 post-deployment health assessment, the Veteran answered in the affirmative to the question of whether he attended sick call for trouble with sleeping and that he then-continued to experience trouble with sleeping. A June 2020 non-VA examiner opined that the Veteran’s OSA was caused by his service-connected PTSD and GERD. The examiner indicated that the Veteran’s VA treatment records reflect chronic sleep impairment and anxiety and cited an article supporting a bidirectional relationship between OSA and PTSD because PTSD can contribute to poor sleep and anxiety. The examiner also indicated that the Veteran’s GERD can provoke or worsen OSA because GERD can mimic OSA by producing a choking sensation and dyspnea at night. The examiner noted that the Veteran’s body habitus of 68 inches tall and 162 pounds were not risk factors and that the Veteran had not displayed the typical risk factors for OSA in males. The non-VA medical opinion is highly probative because the examiner had an accurate and complete understanding of the Veteran’s medical history and provided a medical opinion with sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The August 2020 VA examiner diagnosed the Veteran with OSA. The examiner opined that the Veteran’s OSA was not caused by his service-connected PTSD and/or GERD because insomnia resulted in trouble falling asleep or staying asleep and people with OSA experienced no trouble falling or staying asleep. The examiner noted definite risk factors for OSA including obesity, craniofacial abnormalities and upper airway soft tissue abnormalities. The VA medical opinion is of low probative value because the examiner included, as part of his supporting rationale, definite risk factors for OSA that the Veteran did not have. Nieves-Rodriguez, supra. The Board will grant the claim based on the benefit-of-the-doubt doctrine. The June 2020 non-VA examiner opined that the Veteran’s obstructive sleep apnea was caused by the Veteran’s service-connected PTSD and GERD and the August 2020 VA examiner opined otherwise. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, service connection is warranted and the claim is granted. Skin disorder The Veteran asserts that his skin disorder resulted from service. The claim will be denied because the Veteran does not have a current skin disorder. The law is well settled that in the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). An August 1987 STR reflects the Veteran’s report of experiencing a rash. A physical examination revealed no rashes and the Veteran was assessed with pediculosis. An October 1989 STR reflects the Veteran’s report of experiencing a rash on his chest and back for four days. He was assessed with insect bites. A November 1989 STR reflects the Veteran’s report of experiencing itchy lesions. He was assessed with possible chickenpox. A service tissue examination reflects a diagnosis of “skin with dense plasmacytic infiltrate and epidermal hyperplasia consistent with secondary lues.” A February 1990 service laboratory finding revealed “skin, back: secondary syphilis.” In his March 1995 service medical history report, the Veteran answered in the negative to the question of whether he then had, or once had skin diseases. In the Veteran’s March 1995 service medical examination report, no skin abnormalities were noted. In his January 2000 service medical history report, the Veteran answered in the negative to the question of whether he then had, or once had skin diseases. In the Veteran’s January 2000 service medical examination report, no skin abnormalities were noted. In his August 2004 service medical history report, the Veteran answered in the negative to the question of whether he then had, or once had skin diseases. In the Veteran’s August 2004 service medical examination report, no skin abnormalities were noted. In a July 2007 VA treatment record, no skin lesions or ulcers were noted. In VA treatment records dated August 2007 and April 2008, the Veteran denied experiencing a persistent skin rash. A January 2009 STR reflects the Veteran’s diagnosis of dermatophytosis. A February 2009 STR reflects the Veteran’s diagnosis of atopic dermatitis. In a March 2011 post-deployment health assessment, the Veteran answered in the affirmative to the question of whether he attended sick call for skin diseases or rashes and that he then-continued to experience rashes. In June 2011, the Veteran was afforded a VA gulf war examination. The examiner indicated that the Veteran had chickenpox in 1992 and a history of syphilis. The examiner also indicated that the Veteran did not have a then-current skin disorder. In February 2012, the Veteran was afforded a VA skin diseases examination. The examiner indicated that the Veteran had been diagnosed with syphilitic lesions in the past but that he did not then-have a skin disease and that all syphilitic lesions had resolved. In a May 2012 VA treatment record, a review of systems revealed no rashes. A September 2016 non-VA treatment record reflects a diagnosis of dermatitis. In an August 2017 non-VA treatment record, the Veteran denied experiencing rashes. Non-VA treatment records dated June 2018 and June 2019 noted no rashes. In an August 2019 non-VA treatment record, the Veteran denied experiencing itching and rashes. In VA treatment records dated January 2019 and January 2020, a physical examination revealed normal findings for the Veteran’s skin. A preponderance of the evidence is against a finding that the Veteran has a current skin disorder. Two VA examiners indicated that the Veteran did not have a skin disorder and the Veteran’s most-recent VA and non-VA treatment records reflect no diagnoses of a skin disorder. Therefore, service connection is not warranted and the claim is denied. REASONS FOR REMAND The remaining matter is remanded for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR The Veteran was afforded a VA examination as to his right arm scar in February 2012. In a November 2015 statement, the Veteran indicated that his right arm scar had worsened. An updated VA examination is warranted. See Allday v. Brown, 7 Vet. App. 517, 526 (1995). 2. Schedule the Veteran for a VA examination to assist in determining the current severity of his right arm scar. 3. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.