Citation Nr: 21023330 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-30 974A DATE: April 20, 2021 ORDER The application to reopen the claim for service connection for sleep apnea is granted. The application to reopen the claim for service connection for hypertension is granted. The application to reopen the claim for service connection for erectile dysfunction is granted. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. In an unappealed August 2013 rating decision, the RO denied service connection for sleep apnea. 2. The evidence received since the August 2013 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea. 3. In an unappealed August 2013 rating decision, the RO denied service connection for hypertension. 4. The evidence received since the August 2013 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension. 5. In an unappealed August 2013 rating decision, the RO denied service connection for erectile dysfunction. 6. The evidence received since the August 2013 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for erectile dysfunction. 7. Sleep apnea was manifest during active service. CONCLUSIONS OF LAW 1. The August 2013 rating decision by the Agency of Original Jurisdiction that denied entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The August 2013 rating decision by the Agency of Original Jurisdiction that denied entitlement to service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. New and material evidence has been received to reopen the claim for service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The August 2013 rating decision by the Agency of Original Jurisdiction that denied entitlement to service connection for erectile dysfunction is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 6. New and material evidence has been received to reopen the claim for service connection for erectile dysfunction. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. Sleep apnea was incurred during wartime service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1957 to December 1978. New and Material In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510,513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary’s duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. 1. The application to reopen the claim for service connection for sleep apnea In August 2013, the RO issued a rating decision denying service connection for sleep apnea due to a lack of nexus to service. The Veteran filed a notice of disagreement (NOD) in August 2014. A statement of the case (SOC) was issued in June 2016. The Veteran did not submit a substantive appeal within the 60 day appeal period, and the case was closed. The August 2013 rating decision was final. The Veteran filed to reopen in February 2017. During the course of the claim, the RO obtained a VA examination and new medical opinion. As the prior denial was due to a lack of nexus, a new medical opinion regarding the etiology of the Veteran’s sleep apnea constitutes new and material evidence. Therefore, the claim is reopened. 2. The application to reopen the claim for service connection for hypertension In August 2013, the RO issued a rating decision denying service connection for hypertension due to a lack of nexus to service. The Veteran filed a notice of disagreement (NOD) in August 2014. A statement of the case (SOC) was issued in June 2016. The Veteran did not submit a substantive appeal within the 60 day appeal period, and the case was closed. The August 2013 rating decision was final. The Veteran filed to reopen in July 2017. Medical evidence of record suggests that the Veteran’s hypertension may be related to his sleep apnea. Service connection for sleep apnea is granted below. A new service-connected disability that may be the cause of the Veteran’s hypertension constitutes new and material evidence. Therefore, the claim is reopened. 3. The application to reopen the claim for service connection for erectile dysfunction In August 2013, the RO issued a rating decision denying service connection for erectile dysfunction due to a lack of nexus to service. The Veteran filed a notice of disagreement (NOD) in August 2014. A statement of the case (SOC) was issued in June 2016. The Veteran did not submit a substantive appeal within the 60 day appeal period, and the case was closed. The August 2013 rating decision was final. The Veteran filed to reopen in July 2017. Medical evidence of record suggests that the Veteran’s erectile dysfunction may be related to his sleep apnea. Service connection for sleep apnea is granted below. A new service-connected disability that may be the cause of the Veteran’s erectile dysfunction constitutes new and material evidence. Therefore, the claim is reopened. 4. Entitlement to service connection for sleep apnea 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). The Veteran contends that his sleep apnea was manifest in service. He has submitted lay statements from himself, his wife, and a shipmate, all indicating that the Veteran snored during his active service and that he had interrupted breathing during his sleep. The Veteran and other lay witnesses are competent to report his readily observable symptoms, including snoring and stopped breathing during sleep. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board concludes that the Veteran has sleep apnea which was manifest during his active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records do not show sleep complaints, and the Veteran denied frequent difficulty sleeping. A July 2013 sleep study diagnosed the Veteran with moderate obstructive sleep apnea/hypopnea. The Veteran submitted a letter from a private sleep clinician in May 2014. The letter stated that the Veteran’s sleep apnea was manifest in service, based on the lay reports from the Veteran and others regarding his snoring and breathing pauses during sleep. The clinician further stated that sleep apnea can take many years to develop to the point of diagnosis. In March 2016, the Veteran received a VA examination for his sleep apnea. The examiner opined that the Veteran’s sleep apnea was less likely than not related to his active service. The examiner acknowledged the Veteran’s statements regarding snoring during service but stated that “snoring does not necessarily indicate obstructive sleep apnea was present.” As the Veteran’s sleep apnea was not diagnosed until 30 years after his retirement, and he had other risk factors for sleep apnea, the examiner found that it was less likely than not due to his service. This opinion fails to address the lay statements regarding the Veteran’s interrupted breathing during sleep while on active duty. It is therefore of limited probative value. The Veteran submitted a second opinion in August 2016 from the sleep clinician that provided the May 2014 letter. The clinician clarified that her opinion was based on a review of the Veteran’s service medical records as well as post-service. She reiterated that it was her opinion that the Veteran’s sleep apnea was manifest during his active service based on lay reports of snoring and trouble breathing during sleep. Further, she explained that while age and weight are risk factors for sleep apnea, the “most important factors are the structure of the individual’s airway and the nature of the relaxation of the airway and neck when the individual goes to sleep.” Given this knowledge, as well as the Veteran’s sleep history, it was most likely that his sleep apnea began when he was young, during his military service, and gradually worsened until his diagnosis in 2013. VA obtained another medical opinion in March 2017. After review of the records, the clinician opined that the Veteran’s sleep apnea was less likely than not related to his service. The stated rationale was that the sleep apnea was diagnosed years after service. Further, diagnosis cannot be made from reports of fatigue, tiredness, sleepiness or other nonspecific complaints. The clinician again stated that the Veteran had other risk factors and that snoring alone is not sleep apnea. However, as with the March 2016 opinion, this opinion fails to acknowledge or address the lay statements regarding interrupted breathing during sleep. The statement also fails to address the arguments put forth in the August 2016 opinion regarding the slow development of sleep apnea and the possibility of manifestations many years prior to diagnosis. It is therefore of limited probative value. Upon review of the record, the Board finds the evidence to weigh in favor of a finding that the Veteran’s current sleep apnea was manifest in service. Multiple lay sources have reported that the Veteran had difficulty sleeping, snored loudly, and occasionally stopped breathing during sleep. These symptoms are what led to the Veteran’s diagnosis of sleep apnea and indicate that his sleep apnea was manifest during his active duty. Additionally, the Board finds the medical opinions that adequately address these statements to be of greater probative value than those that categorize the reports as only “snoring.” Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Lastly, we note the following: A fair reading of the VA opinions is that apena does not exist until diagnosis. We find that appropriate testing may confirm the absence or presence of a disease. However, to state that the disease does not exist until diagnosis runs afoul of logic. People are usually tested for a reason. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for erectile dysfunction is remanded. In the May 2014 and August 2016 letters, the Veteran’s private sleep clinician indicated that hypertension and erectile dysfunction may be the result of his sleep apnea. Remand is necessary for examinations and medical opinions. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s hypertension at least as likely as not proximately due to or aggravated by a service-connected disease or injury, to include sleep apnea? 2. Schedule the Veteran for a VA examination for his erectile dysfunction. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s erectile dysfunction at least as likely as not proximately due to or aggravated by a service-connected disease or injury, to include sleep apnea? 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.