Citation Nr: 21025556 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-41 925 DATE: April 28, 2021 ORDER The petition to reopen the claim for entitlement to service connection for sleep apnea is granted. Entitlement to service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for sleep apnea was denied by a March 2014 rating decision. The Veteran did not perfect an appeal of this decision, and it became final. 2. Since the March 2014 rating decision, the Veteran has submitted new evidence that relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s obstructive sleep apnea was incurred during his period of active service. CONCLUSIONS OF LAW 1. The March 2014 rating decision that denied the Veteran’s claim for service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The evidence received since the March 2014 rating decision is new and material, and the claim for service connection for sleep apnea is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for obstructive sleep apnea have been met. 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 March 1977 to March 1997. The Veteran testified at a Board hearing before the undersigned in March 2021. A copy of the transcript is of record. New and Material Evidence, Generally Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened, and the former disposition reviewed. 38 U.S.C. § 5108. "New" evidence means evidence not previously submitted to agency decision makers, and "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 of record at the time of the last 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). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). New and Material Evidence for Sleep Apnea The Veteran's claim for service connection for sleep apnea was denied by a March 2014 rating decision. The RO stated that “since there is no medical evidence of a current diagnosis related to the claimed condition; and the evidence does not establish a connection, link, or nexus between the claimed condition and an event, injury, or disease during service.” As there was no diagnosis of a current sleep apnea disability, service connection was denied. The decision was not appealed, new and material evidence was not submitted within one year, and the denial of the Veteran's claim for service connection became final. 38 U.S.C. § 7105. Since the March 2014 rating decision, additional evidence has been associated with the claims file. In July 2015, the Veteran submitted an April 2014 sleep study report that reported a diagnosis of obstructive sleep apnea. This evidence is new, as it was not part of the record at the time of the prior denial of the claim. It is also material, as it provides evidence of current disability of sleep apnea. When viewed with the previous evidence of record, this evidence of a current diagnosis is neither cumulative nor redundant and raises a reasonable possibility of substantiating the Veteran’s claim. As such, new and material evidence has been received, and reopening the claim is warranted. Entitlement to service connection for obstructive sleep apnea In July 2015, the Veteran filed a claim for service connection for sleep apnea. In his February 2017 Notice of Disagreement, the Veteran argued that he believed that this sleep apnea had onset during his period of active service. “My medical service records gave hints that I was suffering from [sleep apnea]… but at that time, sleep apnea was not known as such but just a sign of tiredness and snoring very loud.” The Veteran has also submitted statements from friends that knew him during the service that assert that the Veteran had difficulties sleeping at that time. The Veteran submitted statements from A.E.M., J.B.C., and R.V. each indicate that the Veteran was heavy snorer during service and two report hearing periods that the Veteran stopped breathing or gasped for breath. The Veteran also submitted a statement from his wife, who reported loud snoring and gasping for breath, after the Veteran returned from deployment to Saudi Arabia in 1991. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entire record. A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded. The Veteran’s service treatment records do not report a diagnosis of sleep apnea or complaints of difficulty breathing during sleep. However, treatment records from March 1994 indicate that the Veteran was approximately 30-35 pounds overweight during service. The Veteran’s examination prior to separation from service in December 1996 did not indicate any problems sleeping. The Veteran, however, was reported to be of “heavy” build by the examiner. The Veteran also reported recent weight gain having put on 12 pounds in the prior three months. After review of the evidence of record, the Board will resolve the benefit of the doubt in favor of the Veteran and finds that service connection is warranted for obstructive sleep apnea. The evidence indicates that the Veteran has current diagnosis of this condition that was confirmed via sleep study, which meets the first element of service connection. The Veteran has reported in-service symptoms of snoring, daytime tiredness, and gasping for breath during sleep. His service treatment records document that the Veteran was of heavy build at separation from service and that he was reported to be approximately 30 pounds overweight towards the end of his period of service. Additionally, the Veteran’s wife and several friends reported that he had a history of loud snoring and gasping for breath, while he slept. The Board finds these reports to be competent and credible; as such, the second element of service connection is met. Finally, the Board finds the October 2014 private opinion that the Veteran’s sleep apnea developed while he was on active duty to be of greater probative value than the opinion provided by the January 2016 VA examiner. The evidence indicates that the private examiner considered the Veteran’s documented history of apneic events during a March 2000 hospitalization. The private examiner also considered the Veteran’s lay reports that he had been told by fellow soldiers that he snored persistently during sleep and that he was observed to have trouble breathing when asleep during service. Based upon this evidence and the Veteran’s competent and credible reports of daytime tiredness and poor sleep quality, the examiner opined that the Veteran’s sleep apnea developed while he was on active duty. The Board finds that the examiner’s opinion considered all of the pertinent evidence of record, to include the lay statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed; as such, the opinion is found to have significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). First, the Board notes that the January 2016 VA opinion does not address the competent, credible lay statements of record that the Veteran was known for very loud snoring and that he was observed to have trouble breathing during service. The examiner also did not discuss the Veteran’s weight gain noted by his service medical records or his reports of daytime tiredness during service. As the 2016 opinion did not address these pertinent facts of record, the Board finds the 2014 private opinion to be of greater probative value than the 2016 VA opinion. Id. Additionally, the December 2015 VA examiner’s opinion only addresses service connection on a secondary basis; as such, it is of no probative value with regard to whether the Veteran’s condition had onset during his period of service. Id. Accordingly, the Board finds that the evidence supports a nexus between the Veteran’s current obstructive sleep apnea and his period of active service; as such, the third element necessary to establish service connection is met. Therefore, the Board finds that service connection for the Veteran’s obstructive sleep apnea is warranted. 38 C.F.R. §§ 3.102, 3.303. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.