Citation Nr: 21028981 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-04 510 DATE: May 12, 202102090 ORDER New and material evidence having been received, the claim for service connection for obstructive sleep apnea (OSA) is reopened. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. The Veteran's claim for OSA was previously denied by a January 2009 rating decision; the Veteran did not appeal that decision, and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period, relates to an unestablished fact necessary to substantiate the claim for service connection for OSA, and raises a reasonable possibility of substantiating the claim. 2. Additional evidence received since the January 2009 rating decision is not cumulative or redundant of the evidence of record at the time of that decision. 3. The preponderance of the evidence shows the Veteran's service-connected left knee tendonitis, degenerative disc disease of the lumbar spine, right shoulder dislocation, and somatic symptom disorder disabilities inhibited activity and led to weight gain and obesity, which aggravates the Veteran's OSA. CONCLUSIONS OF LAW 1. The January 2009 rating decision denying service connection for OSA is final. 38 U.S.C. § 7105(2012); 38 C.F.R. §§ 3.156, 19.20, 19.52, 20.103 (2020). 2. New and material evidence has been received to reopen the claim of service connection for OSA. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. The criteria for service connection for obstructive sleep apnea (OSA) have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1989 to November 1992 and from November 1995 to October 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2020 videoconference hearing, and a transcript of this hearing is associated with the claims file. 1. New and material evidence having been received, the claim for service connection for OSA is reopened. In general, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual premise may not be considered. 38 U.S.C. § 7105. A claim in which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers, while "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. 38 U.S.C. § 3.156(a). New and material evidence cannot be cumulative or redundant of 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. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Regardless of any previous determination by the RO, the Board must consider whether new and material evidence has been received to reopen a previously denied claim. Barnett v. Brown, 83 F.3d 1380, 1383 (1996). The Veteran's claim for service connection for OSA was originally denied in a January 2009 rating decision. The RO notified the Veteran of its decision and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received, within a year following the decision. Thus, the January 2009 decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.52, 20.1103. The June 2009 rating decision denied the claim based on the finding that the Veteran's STRs showed no complaints, treatment, or diagnosis of OSA during service. The relevant evidence of record at the time of the January 2009 rating decision included the Veteran's service treatment records, including separation examinations, showing complaints of sleep issues, and while the Veteran provided private treatment records showing he was diagnose with OSA, he had no private or VA treatment records noting a connection between his OSA and active service. Evidence added to the record since the January 2009 rating decision includes VA and private treatment records and the Veteran's November 2020 hearing testimony. After reviewing the evidence of record, the Board finds the Veteran has submitted new and material evidence to reopen his claim for service connection for OSA. The Veteran submitted private treatment records from January 2009 to August 2013, Additionally, the Veteran submitted an October 2020 private medical opinion from H.M.C., a physician's assistant, which opined the Veteran's OSA was proximately due to or aggravated by his service-connected left knee tendonitis, degenerative disc disease of the lumbar spine, right shoulder dislocation, and somatic symptom disorder disabilities. Because the Veteran's claim was previously denied due to the lack of evidence of his OSA being caused by or otherwise due to his service in the January 2009 rating decision, the private treatment records, as well as the private medical opinion that the Veteran's OSA is proximately due to or aggravated by his aforementioned service-connected disabilities relates to an unestablished fact necessary to substantiate the claim. Additionally, the private treatment records and October 2020 private medical opinion raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the Veteran's petition to reopen his claim for service connection for OSA is reopened. 2. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The Veteran has also alleged that his sleep apnea is due to or aggravated by his service-connected left knee tendonitis, degenerative disc disease of the lumbar spine, right shoulder dislocation, and somatic symptom disorder disabilities. Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current chronic disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either caused or aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Certain chronic diseases are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service, even if there is no evidence of the disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, such chronic diseases may use the alternative method of continuity of symptomatology to establish the second and third Saunders elements if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); see 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed under 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker, 708 F.3d at 1338-40. The Veteran's service treatment records (STRs) are silent with respect to a diagnosis for sleep apnea. However, his STRs note sleep-related issues during active service. His VA treatment records show the Veteran was first diagnosed with sleep apnea in July 2007. The Veteran has a current diagnosis of sleep apnea; therefore, the first element of service connection has been met. Sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker, 708 F.3d 1131. However, the Board will evaluate whether direct service connection or service connection secondary to his service-connected left knee tendonitis, degenerative disc disease of the lumbar spine, right shoulder dislocation, and somatic symptom disorder disabilities are warranted. In this case, the Veteran's service treatment records do not reflect any complaints or treatment related to sleep apnea during service, and post-service treatment records do not reflect diagnosis of sleep apnea until July 2007. However, the Veteran explained during the November 2020 hearing that he described symptoms associated with sleep apnea both during service and up until his diagnosis in 2007, stating he would wake up choking, was never well rested, had difficulty staying asleep, and would wake up with a dry throat. When the Veteran sought treatment for these issues during his service, he stated that he was told it was related to either sinusitis or rhinitis, and this theory continued after service until approximately 2004, when he first learned about sleep apnea. Yet, although the Veteran has shown evidence of symptoms during service and continuously thereafter, there is no competent, medical evidence regarding a nexus between the Veteran's active service and his current OSA The Board recognizes that obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 30 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran's service-connected disability or disabilities or the obesity is aggravated by the service-connected disability or disabilities. Walsh, 30 Vet. App. at 306-7. Regarding secondary service connection, the Board notes that the Veteran is service connected for left knee tendonitis, degenerative disc disease of the lumbar spine, right shoulder dislocation, and somatic symptom disorder, and the second element of secondary service connection is met. The Board finds the weight of the competent evidence establishes a relationship between the Veteran's current sleep apnea and his obesity caused by his service-connected disabilities. In this regard, the Board places significant probative value on the opinions of the October 2020 private medical opinion from H.M.C., as discussed in detail below, who performed a detailed review of the Veteran's service and medical treatment records and provided a sound rationale for the conclusions reached. The Veteran submitted a private medical opinion from H.M.C. in October 2020. H.M.C. opined the Veteran's sleep apnea was at least as likely as not aggravated by his obesity, which is due to his left knee tendonitis, degenerative disc disease of the lumbar spine, right shoulder dislocation, and somatic symptom disorder disabilities. H.M.C. explained that the Veteran's multiple orthopedic service-connected disabilities contribute to his inability to properly exercise, which has directly contributed to his weight gain and resulting obesity since service. H.M.C. notes the Veteran weighed approximately 160 pounds upon active duty service enlistment, increasing to 244 pounds by his separation in 1998. The Veteran's weight has continued to fluctuate, with his heaviest recorded weight being 324.8 pounds (BMI 44) in a December 2019 VA treatment note. The Veteran's somatic pain condition further contributes to low energy and difficulty exercising via his depression associated with the condition. In her opinion, H.M.C. further cites a multitude of medical literature establishing a link between obesity and OSA, noting that obesity is both a risk factor for OSA as well as an aggravating factor. She also provided sources describing an association between OSA and those with chronic pain conditions as well as depression. The Veteran was afforded a VA records review examination in November 2017. The examiner opined the Veteran's OSA was less likely than not incurred or caused by his complaints of sleep problems during service because the Veteran's STRs do not demonstrate he had the characteristic signs and symptoms of sleep apnea. The examiner noted the Veteran's 1998 Report of Medical History revealed that the Veteran's sleep disturbances were due to his worry, depression, or anxiety and not a result of sleep apnea. As for the Veteran's contentions of issues with snoring during service, the examiner explained that snoring by itself is not dispositive that an individual has sleep apnea, and additional testing would be necessary to confirm sleep apnea. Additionally, the examiner referenced a 2004 sleep study which did not confirm the Veteran had sleep apnea at that time, and thus, regardless of his symptoms during service, the examiner opined even if the Veteran had a sleep study during service, it would most likely not have confirmed sleep apnea. However, this examiner did not discuss the possibility of the Veteran's OSA being due to his multiple orthopedic service-connected disabilities. While the Veteran was noted as being obese during service, the Veteran was originally service connected for his multiple orthopedic conditions as of November 1992; however, he was not ratable at that time due to being in active service. Thus, the Veteran's weight gain and obesity shown throughout his STRs is still in-line with H.M.C.'s opinion that the Veteran's multiple orthopedic service-connected disabilities contributed to his obesity, which in turn aggravates his OSA. Additionally, the Board finds the October 2020 opinion from H.M.C. to be of greater probative value than the November 2017 VA examiner's opinion. While the November 2017 examiner provided sound rationale for denying direct service connection, the examiner did not address the possibility of the Veteran's OSA being proximately due to or aggravated by the Veteran's multiple service-connected orthopedic disabilities. Thus, the Board finds this examination to be inadequate. As noted above, the October 2020 opinion from H.M.C. provides an adequate rationale with respect to the Veteran's obesity, which in and of itself is due to or aggravated by his multiple service-connected orthopedic disabilities, aggravating his OSA. Therefore, as the Board finds the October 2020 opinion to be of great probative value, the Board finds the third element of service connection is satisfied. Accordingly, the Board finds the evidence of record establishes the Veteran's obstructive sleep apnea is at least as likely as not caused by and/or aggravated by his service-connected left knee tendonitis, degenerative disc disease of the lumbar spine, right shoulder dislocation, and somatic symptom disorder, and thus service connection for obstructive sleep apnea is warranted. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED