Citation Nr: 21031377 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-58 444 DATE: May 21, 2021 ORDER New and material evidence having been received, the petition to reopen service connection for sleep apnea is granted. Service connection for sleep apnea as secondary to service-connected lumbosacral strain with degenerative arthritis of the spine and bilateral extremity radiculopathy is granted. FINDINGS OF FACT 1. Service connection for sleep apnea was denied in a July 2015 rating decision and the Veteran did not appeal the decision. 2. Evidence received since the July 2015 rating decision is new in that it is not cumulative and was not previously considered by decision makers, and it is material because it raises a reasonable possibility of substantiating the claim for service connection for sleep apnea. 3. The Veteran has a diagnosis of obstructive sleep apnea, which is due to his service-connected lumbosacral strain with degenerative arthritis of the spine and bilateral extremity radiculopathy. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for sleep apnea. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 2. The criteria for service connection for sleep apnea as secondary to lumbosacral strain with degenerative arthritis of the spine and bilateral extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for sleep apnea as secondary to lumbosacral strain with degenerative arthritis of the spine and bilateral extremity radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army for 20 years, from September 1980 to May 1991 and from October 1998 to April 2007. His decorations include a Purple Heart. In February 2021, the Veteran testified at a videoconference hearing before the undersigned. 1. New and material evidence to reopen the claim for service connection for sleep apnea. Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. To reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran submitted a claim for service connection for sleep apnea in July 2015, which was denied in a July 2015 rating decision on the bases that service treatment records (STRs) did not show complaints, treatment, or a diagnosis for sleep apnea, and no nexus between sleep apnea and the Veteran's military service was found. The Veteran was notified of the decision and he did not appeal it. The Board acknowledges the Veteran's contention that he did not receive the July 2015 rating decision but finds there is no indication in the record that the mail was not received. The Court of Appeals for Veterans Claims (Court) has held that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992). The presumption of regularity with regard to the regular mailing of notice attaches if VA mails notice to the last address of record. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). The mere assertion of nonreceipt by an appellant is not enough to establish the clear evidence needed to overcome the presumption of regularity in the mailing of the decision. Davis v. Principi, 17 Vet. App. 29, 37 (2003). In this case, the Board does not find clear evidence to rebut the presumption of regularity in the handling of the statement of the case related to his claim. The mere allegation of irregularity does not, in itself, constitute clear evidence of irregularity. Crain v. Principi, 17 Vet. App. 182, 186 (2003); YT v. Brown, 9 Vet. App. at 199 (allegation that claimant did not receive a statement of the case is not the "clear evidence to the contrary" that is required to rebut the presumption of regularity that the notice was sent). The July 2015 rating decision was mailed to the Veteran in July 2015 at his last known address, and there is no indication or contention that this address was incorrect or that this correspondence was returned to VA as being undeliverable. Subsequently, the Veteran contacted the VA in July 2016, stating he did not receive the notification letter. No further assertions were made by the Veteran as to why he did not receive the letter. Indeed, in the February 2021 Board hearing, the Veteran's representative acknowledged the presumption of regularity and did not provide any reason for why the Veteran did not receive the rating decision. Consequently, the presumption of regularity is not rebutted. The additional relevant evidence received since the July 2015 rating decision includes lay statements and a March 2020 private medical opinion. In September 2016, the Veteran submitted three buddy statements which described the symptoms of sleep apnea, such as daytime tiredness, snoring, and observed episodes of stopped breathing during sleep. Additionally, in the October 2017 Form 9, the Veteran submitted a personal statement, in which he asserted that his wife complained about his snoring going back to the mid-1990's and that fellow soldiers used earmuffs in order to sleep through the Veteran's snoring. Further, a March 2020 private medical opinion noted that the Veteran experienced weight gain in service due to his decreased ability to do aerobic exercise secondary to his service-connected lower extremity and back conditions. The private physician opined that it is as least as likely as not that the Veteran's sleep apnea is directly related to his obesity and is therefore service connected. Lastly, the Veteran testified in a February 2021 Board hearing that his sleeping difficulties began in service and has continued since then. Thus, presumed credible, there is evidence that the Veteran's sleep apnea as secondary to his service-connected disabilities could be related to service. Accordingly, new and material evidence has been received to reopen the claim for service connection for sleep apnea. 2. Service connection for sleep apnea as secondary to lumbosacral strain with degenerative arthritis of the spine and bilateral extremity radiculopathy. The Veteran contends that his sleep apnea is due to weight gain he experienced during active service due to his service-connected back and lower extremity disabilities. See February 2021 Hearing Transcript. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). VA treatment records indicate that in December 2014, the Veteran was diagnosed with obstructive sleep apnea and treatment with CPAP was initiated. Thus, the current disability requirement for service connection for sleep apnea as secondary to lumbosacral strain with degenerative arthritis of the spine and bilateral extremity radiculopathy is satisfied. The question for the Board is whether the Veteran's current sleep apnea either began during active service, or is etiologically related to service, including as due to the service-connected lumbosacral strain with degenerative arthritis of the spine and bilateral extremity radiculopathy. The Board finds that entitlement to service connection for sleep apnea as secondary to lumbosacral strain with degenerative arthritis of the spine and bilateral extremity radiculopathy is warranted. The Board acknowledges that service treatment records (STRs) are silent for any complaints or treatments regarding sleeping difficulties. However, the Board also notes that the Veteran submitted three buddy statements in September 2016 that assert the Veteran had sleep apnea symptoms during service. The Veteran's peers describe him being tired during the daytime, having episodes of extreme snoring and periods where he would stop breathing during his sleep. One buddy statement noted that the Veteran's sleeping problems kept everyone up at night and that earmuffs were used to decrease the noise from his snoring. Further, the Veteran stated in his October 2017 VA Form 9 that since the mid-1990's his wife complained he snored loud and fell asleep during the day. The Veteran stated that he attributed these sleeping issues to his irregular day schedule as an instructor pilot. He asserted that he was unaware of what sleep apnea was until he was diagnosed with it in December 2014. In a March 2020 private medical opinion, a private physician reviewed the Veteran's entire VA claims file as well as medical literature on the Veteran's disabilities. The physician asserted, in a detailed, 5-page opinion, that while the Veteran was in service, he experienced weight gain in part related to his decreased ability to do aerobic exercise secondary to his lower extremities and back disabilities incurred during service. Further, the physician noted that weight gain is by objective medical literature the single greatest risk factor for obstructive sleep apnea. Ultimately, the physician opined that it is at least as likely as not that the Veteran's sleep apnea is directly related to his obesity and is therefore service connected. See also November 2017 VA examination (noting that the examiner opined that documentation supports the Veteran was obese for many years which more likely than not resulted in his sleep apnea). The Board notes that although obesity is not a disability for which service connection may be established, it can qualify as an "intermediate step" between a service-connected disability and a current disability. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018); Walsh v. Wilkie, 32 Vet. App. 300, 305-07 (2020). As noted in VAOPGCPREC 1-2017, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310(a). "'Proximate cause' is defined as a "cause that directly produces an event and without which the event would not have occurred." VAOPGCPREC 6-2003 (quoting Black's Law Dictionary, 213 (7th ed. 1999). A determination of proximate cause is one of fact. The Board finds the March 2020 private medical opinion to be both competent and credible, and as such, entitled to probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The opinion was rendered after reviewing the entire VA claims file, including all ancillary treatment records, lay statements, and compensation and pension examinations. The private physician also reviewed the medical literature associated with the Veteran's disabilities. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The opining physician provided the facts and rationale on which their opinion was based. Therefore, the Board finds the March 2020 private medical opinion to be probative. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board). (Continued on the next page) The Board also finds the statements by the Veteran, his spouse, and former service members to be probative, as they are competent to describe observable symptoms of the Veteran snoring, looking tired, and falling asleep during the day. The statements have also been consistent and are consistent with the March 2020 private medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, the Board finds that service connection for sleep apnea as secondary to service-connected lumbosacral strain with degenerative arthritis of the spine and bilateral extremity radiculopathy is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dourmashkin, Mark W. 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.