Citation Nr: 21031157 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 20-10 099 DATE: May 20, 2021 ORDER The application to reopen a claim for entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. A March 2014 rating decision that denied the Veteran's claim for service connection for sleep apnea was not appealed, nor was new and material evidence received during the relevant appeal period. 2. The evidence received since the final March 2014 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for sleep apnea and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2014 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105 (b); 38 C.F.R. §§ 3.104, 19.52, 20.1103. 2. New and material evidence has been received to warrant reopening the claim of service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1964 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified at a hearing before the undersigned in April 2021. A transcript of that hearing has been associated with the record. New and Material Evidence At the outset, the Board notes that in the November 2017 rating decision on appeal, the RO declined to reopen the Veteran's claim, finding that the evidence submitted was not new or material. Regardless of the findings of the RO, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In general, a claim that has been denied in a final unappealed RO rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In a March 2014 rating decision, the RO denied entitlement to service connection for sleep apnea, finding that there was no evidence of a diagnosis of sleep apnea in the record. The Veteran was notified of his appellate rights in a March 2014 letter. He did not appeal the RO's determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. The RO's decision is therefore final and not subject to revision on the same factual basis. 38 U.S.C. § 7105 (c); 38. C.F.R. §§ 3.104, 19.52, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for sleep apnea. As noted above, despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in March 2014. The evidence includes an August 2017 examination and statement from a private physician and the report of an August 2017 VA examination, both of which confirm a diagnosis of obstructive sleep apnea. Given that the basis for the prior denial of the claim was a lack of diagnosis, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claim of service connection for obstructive sleep apnea, and raises a reasonable possibility of substantiating the claim. Thus, the claim is reopened. REASONS FOR REMAND The Veteran contends that his sleep apnea is due to his military service. In the alternative, he contends that sleep apnea developed secondary to, or is aggravated by, his service-connected disabilities. In support of his claim to reopen, the Veteran submitted an August 2017 statement from a private physician, in which the doctor opined that "obstructive sleep apnea syndrome is a chronic condition that this patient very likely had for many years and may be aggravating his chronic medical problems." Unfortunately, this opinion is speculative at best and provides an inadequate basis on which to support the Veteran's claim. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). In November 2017 the Veteran was afforded a VA examination. At that time, the examiner was asked to address a relationship, if any, between the Veteran's service-connected disabilities and his sleep apnea. He opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of his service-connected conditions. He explained that the condition is caused by a recurrent functional collapse of the upper airway during sleep, due to anatomical abnormalities and tissue changes of the airway. Diabetes mellitus, hypertension and PTSD do not cause, aggravate or influence obstructive sleep apnea in any way, and no medical studies in peer reviewed medical literature has shown that these conditions cause or aggravate obstructive sleep apnea. The Board must find this examination inadequate, as the VA examiner failed to provide an opinion addressing whether the Veteran's sleep apnea is directly related to service. In addition, the Board notes that the rationale he provided for his conclusion regarding secondary service connection lacks detail. Thus, another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Finally, in tandem with his March 2020 substantive appeal, the Veteran provided a list of medical articles which he felt supported his claim that there was a link between his military service (to include his service-connected disabilities) and his obstructive sleep apnea. A medical article or treatise can support a claim when combined with the opinion of a medical professional, if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Therefore, upon remand, the selected examiner will be asked to comment on these articles. The matters are REMANDED for the following action: Request an opinion from a clinician to determine the etiology of the Veteran's sleep apnea disability. The need for an in-person examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The examiner is asked to review the file and address whether it is at least as likely as not (that is, a 50 percent or greater probability) that the Veteran's diagnosed obstructive sleep apnea is directly related to service. The examiner is also asked to opine as to whether it is at least as likely as not that the Veteran's diagnosed obstructive sleep apnea is either (b) caused or (c) aggravated by any of the following service-connected disabilities: coronary artery disease; PTSD; diabetes mellitus (with erectile dysfunction, bilateral upper and lower extremity peripheral neuropathy and onychomycosis); hypertension; bilateral hearing loss; bilateral dry eye syndrome; and right lateral epicondylitis and triceps tendonitis. "Aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. If aggravation is found, the examiner should identify the baseline level of severity prior to the onset of aggravation. (Continued on the next page) In providing the requested opinions, the examiner is asked to specifically comment on the relevant evidence of record, to include the article submitted by the Veteran in March 2020 which address a possible link between certain medical conditions and obstructive sleep apnea. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.