Citation Nr: 21026955 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-11 284A DATE: May 4, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for sleep apnea (also claimed as breathing disorder and fatigue) is granted. Entitlement to service connection for major depressive disorder with anxious distress is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In an unappealed November 2007 rating decision, the RO denied the claim for entitlement to service connection sleep apnea (also claimed as a breathing disorder and fatigue). 2. Evidence received since the November 2007 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the Veteran's claim for sleep apnea. 3. Resolving reasonable doubt in the Veteran's favor, his major depressive disorder with anxious distress began during active service. CONCLUSIONS OF LAW 1. The November 2007 rating decision, which denied a claim of entitlement to service connection for sleep apnea (claimed as a breathing disorder and fatigue), is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2020). 2. The criteria to reopen the claim of entitlement to service connection for sleep apnea are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria for service connection for major depressive disorder with anxious distress are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in September 2018, at which time they were remanded for further development of the record. The Board also remanded a claim of entitlement to service connection for headaches with memory loss, claimed as migraines. Subsequently, in a March 2020 rating decision, the RO granted service connection for migraines, previously considered as headaches with memory loss. This issue is no longer before the Board because the March 2020 decision represents a full grant of the benefit sought. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). New and Material Evidence Applicable Law and Regulations The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for sleep apnea. The Veteran's initial claim for service connection for sleep apnea (also claimed as a breathing disorder and fatigue) was denied in a November 2007 rating decision on the grounds that the evidence of record failed to show that the condition was incurred in or caused by military service. The Veteran did not appeal the November 2007 rating decision and no evidence was received within the one-year appeal period that would constitute new and material evidence. Thus, the November 2007 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. After a thorough review of the evidence of record, the Board concludes that new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. The pertinent evidence associated with the claims file since the November 2007 rating decision includes a private medical opinion which indicates that the Veteran's service-connected migraine/headaches disorder and psychiatric disorder (note: the Board is granting service connection for major depressive disorder with anxious distress herein) "aided in the development of" and "permanently aggravated" his obstructive sleep apnea. See November 2016 Opinion from Dr. M.B. While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, the Veteran's has provided new evidence in the form of a November 2016 medical opinion which suggests that his sleep apnea is secondarily related to a service-connected disability (or, disabilities). Accordingly, the new theory of entitlement coupled with the medical evidence constitutes new and material evidence sufficient to reopen the Veteran's claim. As such, the evidence is new and material and the claim for entitlement to service connection for sleep apnea is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Applicable Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 2. Entitlement to service connection for major depressive disorder with anxious distress. The Veteran seeks service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder with anxious distress. After thorough consideration of the evidence of record, the Board concludes that the Veteran has a current psychiatric disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). As an initial matter, the Board acknowledges that an August 2019 VA examiner noted that the Veteran had "psychological adjustment issues" associated with childhood abuse prior to military service. However, the Veteran's February 1987 enlistment examination reflects that the Veteran's psychiatric evaluation was normal; no psychiatric disorder was otherwise noted on entry; and he expressly denied a history of depressive/excessive worry/nervous trouble. See February 1987 Report of Medical Examination and Report of Medical History. Additionally, the Veteran and his mother have provided competent and credible statements regarding the onset of his psychiatric symptoms that occurred during service. Lastly, an August 2020 private medical opinion (discussed at length below) supports the conclusion that the Veteran's psychiatric disorder began in-service. Thus, the Board finds that there is not clear and unmistakable evidence of a psychiatric disorder prior to service. As such, the Veteran is presumed sound and the Board will proceed to analyze direct service connection. 38 U.S.C. § 1111. With respect to the current disability requirement, VA and private treatment records dated throughout the appeal period show that the Veteran has a current major depressive disorder with anxious distress diagnosis. See, e.g., August 2019 VA Mental Disorders Examination Report; August 2020 Mental Disorders Disability Benefits Questionnaire (DBQ). During service, the Veteran was seen for complaints of impaired sleep, headaches, and stress; he was ultimately diagnosed with situational anxiety. See January 1988 STR. The Veteran was treated for psychiatric symptomatology as early as 1998, although he has competently and credibly maintained that he has experienced depressive/anxiety symptomatology continuously since service. See Treatment Records from Creekwood Family Care; July 2007 Claim; August 2020 Private DBQ/Opinion; and November 2020 Lay Statement from Veteran's Mother. Thus, the question becomes whether the current disability is related to service. On this question there are opinions in favor of and against the claim. The evidence against the claim includes an August 2019 VA opinion in which the examiner concluded that it was likely than not that the Veteran's current diagnosis of unspecified depressive disorder was incurred in or caused by his military service. The examiner reasoned, in part, that the Veteran had adjustment issues in terms of anger management prior to his military service and that there was no sufficient information to suggest that anxiety issues in-service were chronic in nature. The evidence in favor of the claim includes an August 2020 Mental Disorders DBQ and accompanying medical opinion from Dr. K.G. (PhD), in which she opined that the Veteran's major depressive disorder with anxious distress more likely than not began in-service. Dr. K.G. specifically acknowledged the Veteran's statements as to onset ("He attributed the onset of mental health issues to ongoing conflict with his company commander during service"). She also addressed the conflicting findings of the August 2019 VA examiner, noting that there was, in fact, no indication in the record of mental health symptoms or treatment prior to military. Dr. K.G. explained that childhood trauma and some high school infractions were not tantamount to mental health diagnoses. Moreover, collateral data (to include statements from the Veteran's mother) echoed the Veteran's self-report that his depression began in-service. Dr. K.G. cited to a medical journal article in noting that the relationship of trauma and mental illness was largely correlational and, thus, did not justify the conclusion that childhood trauma favored development of psychiatric disorders. Dr. K.G. stated, "In the case of the Veteran, it is likely that the current interpersonal conflict the commander, the feelings of helplessness that ensued, combined with the rigors and stressors of the military, contributed to the development to his mental health problems." With respect to the VA examiner's finding that the Veteran's anxiety in-service was not chronic nature (or situational), Dr. K.G. explained that the Veteran had described recurrent and debilitating anxiety that escalated with prolonged contact with his commander and that this was "suggestive of a high a degree of distress far exceeding that which is expected with situational anxiety." The Board finds Dr. K.G.'s opinion to be particularly probative as to the issue of nexus because it was based on a review of the Veteran's service treatment records, interview of the Veteran, post-service medical records, and lay statements; further, her opinion was based a complete rationale, to include resolution of conflicting findings/opinions and citation to relevant medical treatise. In short, the most probative evidence of record, namely, the STRs documenting in-service psychiatric symptoms, the competent and credible statements from the Veteran and his mother regarding onset/continuity of psychiatric symptoms, and the well-supported August 2020 private medical opinion, establishes that the Veteran's currently diagnosed depressive disorder with anxious distress began during active duty service. Accordingly, after resolving any remaining doubt in favor of the Veteran, the Board finds that service connection for depressive disorder with anxious distress is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for sleep apnea is remanded. The Veteran primarily contends that his obstructive sleep apnea is proximately due to, or aggravated by service-connected disabilities, to specifically include migraine headaches and/or major depressive disorder. See, e.g., November 2020 Veteran's Brief. As noted above, a March 2020 rating decision granted service connection for "migraines, previously considered as headaches with memory loss," and the Board is granting service connection for major depressive disorder with anxious distress herein. Alternatively, he asserts that his sleep problems had their onset during active duty service. In this case, service treatment records dated in January 1988 reflect complaints of sleep problems (i.e., waking up every 30 minutes) and waking up with headaches. Post-service treatment records document an obstructive sleep apnea diagnosis as early as July 2000. The Veteran has also competently reported that he has experienced sleep problems since service. See, e.g., July 2007 VA Form 21-526. As noted above, the record contains a private medical opinion which is suggestive of a link between the Veteran's obstructive sleep apnea and his service-connected migraine/headache and psychiatric disorders. See November 2016 Opinion from Dr. M.B. Specifically, Dr. M.B. opined, "I feel it is as likely as not that his depressive disorder, migraines, and chronic daily headaches aided in the development of OSA and has permanently aggravated his OSA." However, the rationale for this opinion cites to several medical studies that rely on the co-morbidity of psychiatric disorders and sleep apnea rather than any proximate causation. Further, the opinion does not include rationale explaining specifically how (or to what extent) sleep apnea is chronically aggravated by any service-connected condition. Given the above, the Board finds that an examination and medical opinion is necessary to determine whether the diagnosed obstructive sleep apnea is secondary to a service-connected disability (or disabilities), or is etiologically related to his active service. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: Schedule an appropriate VA examination to determine the nature and etiology of the Veteran's sleep apnea. The relevant documents in the claims file should be made available to the VA examiner. Any testing deemed appropriate to provide the opinion should be conducted. The VA examiner is requested to offer an opinion as to the following: (a) Whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed sleep apnea was incurred in or the result of the Veteran's active service? (b) If the answer to the above question is negative, whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed sleep apnea is proximately due to or the result the service-connected migraine disorder and/or major depressive disorder with anxious distress? (c) If the answer to the above questions are negative, whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that existing sleep apnea increased in severity beyond natural progress of the disease by the service-connected migraine disorder and/or major depressive disorder with anxious distress? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or permanent worsening as it is to find against causation or permanent worsening. All opinions are to be accompanied by a rationale that is consistent with the evidence of record. A discussion of the pertinent evidence, to include the Veteran's statements, any relevant medical treatises, and generally accepted medical principles, is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hoeft 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.