Citation Nr: 21022515 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-41 233 DATE: April 16, 2021 ORDER New and material evidence has been received and the claim of entitlement to service connection for sleep apnea is reopened. Entitlement to service connection for sleep apnea is granted. FINDING OF FACT 1. An August 2007 rating decision denied entitlement to service connection for sleep apnea. The Veteran was notified of the denial but did not submit new and material evidence or a Notice of Disagreement (NOD) within one year. 2. Evidence received since the August 2007 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for sleep apnea. 3. Resolving doubt in the Veteran’s favor, the credible and competent medical and lay evidence shows the Veteran’s sleep apnea had its onset during active military service. CONCLUSION OF LAW 1. The August 2007 rating decision is final. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103 2. The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303 (a); 3.159 (a)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to April 1995. This appeal comes to the Board of Veterans’ Affairs (Board) from a February 2017 rating decision by the Department of Veterans’ Affairs (VA). The Veteran participated in a hearing with the undersigned in September 2020. New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 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. New evidence is 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 U.S.C. § 5108; 38C.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, 1347 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App.273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App.110, 117 (2010). An August 2007 rating decision denied entitlement to service connection for sleep apnea. The Veteran was notified of the denial but did not submit new and material evidence or an NOD within one year. The denial therefore became final. In November 2016 the Veteran filed a request to reopen the claim. Evidence received since the August 2007 rating decision includes hearing testimony and lay evidence from the Veteran and his family. These are new, as they were not before the agency of original jurisdiction in August 2007. This evidence relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for sleep apnea. Specifically, the evidence pertains to nexus and in-service elements. The Board thus reopens the Veteran’s claim of entitlement to service connection for sleep apnea for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Entitlement to service connection for sleep apnea Generally, direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). In January 1996, less than a year after the Veteran separated from service, a VA sleep study established a diagnosis of sleep apnea and he was prescribed a CPAP machine. The Veteran received surgery for the disability in the same month. At the Board hearing, the Veteran testified that he has continued use of a CPAP to treat his sleep apnea to the present. The diagnosis has remained consistent throughout the Veteran’s medical records and he continues to carry a diagnosis of sleep apnea. See, e.g., March 2017 VA treatment record. Thus, the first element of a current disability has been satisfied. Next, the Board turns to the in-service incurrence of disease or injury. While the Veteran’s in-service medical records are silent as to a sleep disorder, the Veteran contends he had trouble sleeping, including snoring, while in service, both on a submarine and aircraft carrier. He explained he never attempted to address the issue with a medical professional because he was unaware sleep apnea was a condition that could be diagnosed. The Veteran’s wife submitted a lay statement describing the Veteran’s sleep issues during service. She states, that while still in service, she witnessed the Veteran excessively snoring and stop breathing while he slept. 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 layperson. 38 C.F.R. § 3.159(a)(2). The Veteran’s wife is competent to report what she witnessed, and the Veteran is competent to report his reasoning for his lack of attempts to seek help. The Board finds the Veteran’s wife’s very specific account credible and probative. The Veteran’s account of being dissuaded from going to sick call and not understanding the serious nature of the condition is consistent with the time, place, and circumstances of his service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds no reason to doubt the credibility of the Veteran’s or his wife’s reports. As such, the second element of an in-service incurrence or aggravation of a disease or injury is satisfied. Finally, the Board must address whether a nexus exists between the Veteran’s current disability and his in-service symptoms. Since his honorable discharge in April 1995, the Veteran has made consistent complaints of his sleep issues. In January of 1996, the Veteran needed to receive surgery to address his sleep apnea issues. Since then he has used a CPAP machine. The previously addressed lay statement by the Veteran’s wife not only discussed his in-service sleep issues, but also pointed to times immediately after service when he fell asleep while driving. Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). During the hearing, the Veteran testified that his sleep problems began during service and have progressively gotten worse. Since his initial complaint, he has credibly and competently made statements regarding his sleep disorder, up to present day. While the Veteran cannot witness his own sleep apnea, his wife competently and credibly described symptoms in service that later resulted in a diagnosis of sleep apnea by a medical professional. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s sleep apnea had its onset in service and grants service connection for sleep apnea. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Brewer, 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.