Citation Nr: 21029097 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-64 063 DATE: May 12, 2021 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED The appeal to reopen the claim of service connection for a cervical spine disability is remanded. FINDING OF FACT The Veteran's sleep apnea was not manifested in service, and is not shown to be etiologically related to her service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training in the U.S. Army National Guard from July 1980 to August 1980 and from February 1982 to April 1982 with additional periods of training from 1979 to 2006. See Service Record received May 23, 2017 and October 12, 2017. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision. In October 2020 a video conference hearing was held before the undersigned; a transcript is in the record. 1. Entitlement to service connection for sleep apnea Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Service personnel records show that the Veteran had duties as a field artillery targeting specialist and vehicle mechanic and driver in the New York National Guard. The Veteran's service treatment records (STRs) contain no mention of complaints, injuries, diagnosis, or treatment pertaining to sleep apnea. In a February 2005 physical examination questionnaire, the Veteran denied frequent trouble sleeping. An examiner noted no respiratory abnormalities. At a February 2017 informal DRO hearing, the Veteran testified that she was exposed to toxins while breathing and working with changing tires and engine exhaust. In April 2013 correspondence the Veteran contended that she had sleep apnea due to working with maintenance battalion toxins. A March 2017 Sleep Study diagnosed the Veteran with mild to moderate obstructive sleep apnea. At the October 2020 video conference hearing, testimony related to the claim of service connection for sleep apnea was not provided, but it was noted that the matter was still on appeal at the time. It is not in dispute that the Veteran has a diagnosis of sleep apnea. See March 2017 Sleep Study. What remains for consideration is whether the current sleep apnea may otherwise be etiologically related to the Veteran's active service. Whether there is a nexus between current sleep apnea and the Veteran's active duty service/activities therein (to include the Veteran's reported exposure to maintenance battalion toxins) is a medical question beyond the scope of common knowledge or capability of lay observation. It requires require medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not submitted any medical opinion or treatise evidence that shows, or suggests, that her sleep apnea may be related to her service/activities therein. The Veteran is competent to report symptoms that she has experienced, as well as to discuss the duties assigned to her in service. However, the Veteran is a layperson, and her own opinion alone that her sleep apnea was caused by active duty service is not sufficient to establish a nexus between the Veteran's service and her sleep apnea. The Board notes that the Veteran has not been afforded a VA examination to ascertain the etiology of her sleep apnea. However, because there is no evidence of related injury, complaints, diagnosis, or treatment of such in service, and no indication it may be related to the Veteran's service, a VA examination is not required. 38 U.S.C. § 5103A (a)(2); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The preponderance of the evidence is against this claim. Accordingly, the appeal seeking service connection for sleep apnea must be denied. REASONS FOR REMAND 2. The appeal to reopen the claim of service connection for a cervical spine disability is remanded. An unappealed August 2010 rating decision denied service connection for a neck disability on the basis that the Veteran's neck disability was shown to be related to a December 1996 workplace injury, and not active duty service. Under the legacy appeal system, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. "New" evidence means existing 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. 38 C.F.R. § 3.156 (a). The mere allegation of a new theory of entitlement to service connection is insufficient to reopen the previously denied claim. See Velez v. Shinseki, 23 Vet. App. 199 (2009). Actual submission of new and material evidence in support of that theory of entitlement is necessary. Id. Under certain circumstances further development is required prior to appellate consideration of whether new and material evidence has been received to reopen a claim. This case presents such circumstances. The Veteran has alleged that while in transit to training in March 2004 she was involved in a bus accident and treated at Jacobi Medical Center. See February 2017 Correspondence. Unfortunately, current development has not allowed for the confirmation of such bus accident. However, outstanding records of such treatment would contain pertinent information (as alleged), and should be sought. See 38 C.F.R. § 3.159. It is noted that the record contains previous efforts to obtain a VA 21-4142 from the Veteran so VA may obtain such alleged treatment records. However, no such form has been received from the Veteran. Notably, the duty to assist is not a one-way street. The Veteran is notified that a failure to provide documents related to the Veteran's alleged incident will result in VA proceeding to adjudicate such claim without the addition of such records. The matter is REMANDED for the following action: Once again, ask the Veteran to complete and submit a VA Form 21-4142 authorizing VA to secure for the record complete clinical records of all evaluations and treatment she received following her reported March 2004 bus accident at Jacobi Medical Center. Obtain such records. Notice should be provided to the Veteran that if such authorization is not received, that VA will proceed with adjudication of the matter without such records. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.