Citation Nr: 21025360 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-11 802 DATE: April 27, 2021 ORDER The issue of entitlement to service connection for obstructive sleep apnea (OSA) is reopened. REMANDED Entitlement to service connection for OSA secondary to service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for fibromyalgia is remanded.   FINDINGS OF FACT 1. In a September 2010 rating decision, the RO denied entitlement to service connection for sleep apnea. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 2. Evidence received since the September 2010 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea and raises a reasonable possibility of substantiating the claims. CONCLUSION OF LAW The evidence received since the September 2010 rating decision is new and material and sufficient to reopen the claim of service connection for OSA. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from July 1982 to July 1987, January 1989 to January 1991, and from March 1991 to March 2004 with applicable service in the Southwest Asia theater of operations. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision. In October 2019, the Board denied all three issues on appeal. The Veteran appealed the October 2019 denial to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court issued an order granting a Joint Motion for Partial Remand (JMPR) and vacated, in part, the October 2019 decision to the extent it denied service connection for IBS, fibromyalgia, and the application to reopen the previously denied claim for entitlement to service connection for OSA. New and Material Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen the previously denied claim of service connection for OSA. The Veteran was originally denied service connection for sleep apnea in a September 2010 rating decision on the basis that the evidence of record did not establish either an in-service incurrence of sleep apnea or a nexus between service and his then-current sleep apnea. The evidence at the time consisted of service treatment records (STRs), and post-service medical treatment records to include a December 2009 pulmonary consult noting that the Veteran complained of pauses in breathing during sleep, dry mouth in the morning, awakening with headaches, choking, gasping, grinding his teeth during sleep, back pain, and wheezing. The evidence at the time also included July 2010 lay statements from the Veteran and his wife detailing the impact of his sleep apnea and his need for a CPAP machine. He did not appeal, and the September 2010 rating decision became final. The evidence received since the September 2010 rating decision includes post-service medical treatment records, and multiple lay statements from the Veteran stating that his sleep apnea stemmed from in-service headaches, neck pain, and throat issues and asserting that clinicians opined that his in-service symptoms were consistent with sleep apnea. The evidence also includes an April 2018 buddy statement recalling the Veteran’s breathing difficulties, problems with his nose and throat, and fatigue, a May 2018 private medical opinion offering that his sleep apnea was related to in-service tonsillitis, and an October 2019 private medical opinion linking the Veteran’s service-connected PTSD with his diagnosed OSA. This evidence provides bases for reopening the claim for service connection. Specifically, the evidence was not before the agency of decision makers at the time of the September 2010 final denial of the claims for service connection, and, it is not duplicative or cumulative of evidence previously of record. Moreover, the new evidence submitted is material in that it relates to the basis for the prior denial, i.e., the lack of evidence establishing a nexus. Additional service treatment records (STRs) were received in February 2019. As these STRs are either duplicative or not relevant, reconsideration under 38 C.F.R. § 3.156(c) is not in order. Nonetheless, the new evidence relates to unestablished facts necessary to substantiate the claim for service connection and also raise a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 110. The criteria for reopening the claim for service connection for OSA have therefore been met. REASONS FOR REMAND 1. Service connection for OSA This issue is remanded for a VA examination. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran may have OSA directly incurred during service or secondary to a service-connected disability. A May 2018 opinion from a private (non-VA) medical provider states that the Veteran should be service-connected for tonsillitis and OSA with OSA being secondary to his tonsillitis, which is a condition he had on active duty. The examiner found that the Veteran’s sleep apnea started while on active. The examiner explained that the Veteran had a history of treatment for his tonsils becoming infected, which caused his breathing and sleep disorder. He had a current diagnosis of sleep apnea, and there was evidence that linked his condition to the precipitating disease in service. The provider stated that it was his professional opinion that the Veteran’s claimed condition was due to and incurred during his service. A different private provider offered a positive opinion in October 2019. This examiner marked the box indicating that it was is his medical opinion that it is more likely than not that the Veteran’s current diagnosis is directly related to service. The provider wrote that a study published in the Journal of Clinical Sleep Medicine found that of 159 Veterans screened, 69.2 percent were assessed as being at high risk of OSA. The examiner also noted the study as showing “[a]nother possibility” to be that chronic stress from PTSD increases the likelihood of developing OSA. The Board finds that neither of these opinions is sufficient to resolve the appeal. However, they indicate that sleep apnea may have been incurred directly during service or be secondary to a service-connected disability. Hence, a VA examination is needed. 2. Service connection for IBS 3. Service connection for fibromyalgia. The Veteran contends that he has IBS and fibromyalgia due to his active service. The November 2020 JMPR found that a remand is warranted because the Board erred when it failed to ensure that the VA complied with its duty to assist under the requirements of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) by obtaining an adequate medical opinion. Specifically, the November 2013 VA examination opinion failed to consider the Veteran’s lay statements that he suffered from IBS symptoms since returning from Iraq in 2004. The Board found that the Veteran had active service from July 1982 to July 1987, from January 1989 to January 1991, and from March 1991 to March 2004. The November 2013 examiner stated that the Veteran did not have gastrointestinal complaints on his separation examination in August 2003 and January 2003. However, the examiner’s opinion did not consider the Veteran’s lay statement that he had problems with diarrhea since returning from Iraq in 2004. Accordingly, consistent with the concerns raised in the JMPR, a remand is necessary for a new VA medical opinion that addresses the Veterans assertions regarding post-service symptomatology and for the examiner to review any relevant medical records from that period. The parties also found that the November 2013 VA examiner’s opinion was internally inconsistent and lacked an adequate rationale regarding service connection for fibromyalgia. The examiner marked “no” when asked: “Does the Veteran now have or has he/she ever been diagnosed with fibromyalgia?” Then, the examiner noted: “Yes” when asked: “Does the Veteran currently have any findings, signs, or symptoms attributable to fibromyalgia?” The examiner also reported that: “the Veteran’s complaint of joint/muscle pain is related to his other claimed conditions (back, neck, shoulder, knee, and ankle). His joint and muscle pain is not a CMI or related to any particular exposure event during his service in Southwest Asia.” However, the examiner did not provide any rationale addressing whether the Veteran’s fibromyalgia symptoms are related to service. On remand, consistent with the concerns raised in the JMPR, a VA medical examiner should address whether the Veteran’s fibromyalgia symptoms are related to service. Accordingly, consistent with the JMPR, new VA opinions are necessary to determine whether the Veteran’s claimed disabilities are due to an undiagnosed illness, a medically unexplained chronic multisymptom illness, or are otherwise related to service. See 38 C.F.R. § 3.317; Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history); Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Board must return a report as inadequate if it fails to substantial comply with Board remand directives). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the Veteran’s sleep apnea. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. The examiner is asked to address each of the following: (a.) Whether the Veteran’s sleep apnea at least as likely as not (1) began during active service or (2) is otherwise related to an in-service injury, event, or disease. (b.) Whether sleep apnea condition is at least as likely as not (1) proximately due to, or (2) aggravated beyond its natural progression by a different medical condition, such as PTSD. If so, the examiner is asked to identify the primary medical condition. In answering these questions, the examiner is asked to consider two private opinions, from November 2018 and October 2019, respectively. The examiner must also consider all lay statements regarding the history of his symptoms. The examiner is asked to explain why these statements make it more or less likely that his condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 2. Obtain a medical opinion by an appropriate clinician to determine the nature and etiology of IBS and fibromyalgia due to an undiagnosed illness, a medically unexplained chronic multisymptom illness, or otherwise related to service. The clinician should review the file, including a copy of this remand, and address the following: (a.) Please state whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? If the clinician disagrees with a diagnosis already established in the medical records, he/she should state so and explain why. (b.) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. (c.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d.) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? In answering these questions, the examiner is asked to consider the statements from the Veteran that he had problems with diarrhea since returning from Iraq in 2004. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.