Citation Nr: 22069964 Decision Date: 12/18/22 Archive Date: 12/18/22 DOCKET NO. 20-07 780 DATE: December 18, 2022 ORDER As new and material evidence has been received, the petition to reopen the claim of entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disability (with intermediary obesity), is granted. REMANDED Entitlement to service connection for OSA, to include as secondary to service-connected disability (with intermediary obesity), is remanded. Entitlement to service connection for diabetes mellitus, type II (DMII), to include as secondary to service-connected disability (with intermediary obesity), is remanded. FINDINGS OF FACT 1. A July 2015 rating decision denied service connection for OSA. The Veteran did not perfect an appeal and new and material evidence was not received prior to the expiration of the appeal period. 2. Evidence added to the record since the final July 2015 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim for service connection for OSA. CONCLUSIONS OF LAW 1. The July 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for OSA, to include as secondary to service-connected disability (with intermediary obesity), are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1999 to February 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2017 and March 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript is of record. In part, the Veteran filed a January 2017 claim seeking service connection for gastroesophageal reflux disease (GERD). The RO granted the matter, assigning a disability rating of 10 percent in a January 2020 rating decision. As the full benefits sought on appeal for the GERD claim have been granted, the claim is no longer before the Board. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for OSA, to include as secondary to service-connected disability (with intermediary obesity) Generally, 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 final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. In a January 2020 supplemental statement of the case, the RO completed a de novo review of the OSA claim. However, as a threshold matter, the Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection on the merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. See 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. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The Court interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding opening." See Shade, supra. The Veteran's initial May 2014 claim of entitlement to service connection for OSA was denied in pertinent part by a rating decision dated in July 2015. The basis for the denial was lack of nexus. The Veteran was notified of the decision by letter in July 2015, which was mailed to the then-current mailing address of record. VA did not receive new evidence or a notice of disagreement within one year of the issuance of the July 2015 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran filed a request to reopen his OSA claim in January 2017. In the March 2017 rating decision on appeal, the RO continued the previous denial, finding new and material evidence had not been submitted. The evidence added to the record since the July 2015 rating decision includes the Veteran and his wife's March 2018 statements, an October 2019 VA sleep apnea examination, VA medical opinions issued in October 2019, December 2019, and January 2020, the Veteran's August 2021 Board hearing testimony, and supporting literature submitted by the Veteran in August 2021. This evidence is material because it bears directly on the issue of a nexus to service, to include secondary to service-connected disability, which is the reason that the claim was previously denied in the July 2015 rating decision. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for OSA, particularly when considering the low threshold for reopening a claim as set forth in Shade, supra. Accordingly, the claim to entitlement to service connection for OSA is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND While the Board regrets the delay, a remand is needed for additional development. This is necessary to ensure that the Veteran is afforded every possible consideration and that there is a complete record upon which to decide his appeal. 1. Entitlement to service connection for OSA, to include as secondary to service-connected disability (with intermediary obesity) 2. Entitlement to service connection for DMII, to include as secondary to service-connected disability (with intermediary obesity) The Veteran contends that his OSA and DMII disabilities are related to his service-connected post-traumatic stress disorder (PTSD), to include medications and weight gain, and that he began to gain weight during his active duty service. See, e.g., August 2021 Hearing Transcript. At the outset, the Board notes that diagnoses of OSA and DMII are of record. See June 2017 VA Treatment Record and June 2015 VA Sleep Apnea Examination Report. A June 2015 VA examiner opined that the Veteran's OSA was not proximately due to or the result of, nor aggravated beyond its natural progression by, his PTSD. The examiner cited to a 2014 review of scientific literature for the proposition that no conclusions can be drawn. The examiner also stated that the diagnosis of OSA occurred many years after the onset of PTSD, which showed that the Veteran's OSA was not aggravated beyond its natural progression by PTSD. In October 2019, a VA examiner also found the Veteran's OSA not related to his PTSD. The examiner noted that Duloxetine, the Veteran's medication for his PTSD, is not known to cause weight gain. The examiner also stated that OSA is a physiologically mechanical dysfunction that is to date an entirely independent etiology from PTSD, and that PTSD and/or its treatment are not known medical causes of OSA. Further, the examiner issued an addendum opinion in January 2020 regarding the Veteran's 40-pound weight gain in the 6 months following his separation from service. The examiner found no documentation to support any medical or mental health etiology for the weight gain, but stated it was a normal finding considering the Veteran's transition from active to inactive service, with corresponding changes in physical and occupational responsibilities. The examiner noted the onset of weight gain at the same approximate time as the Veteran beginning medications for PTSD treatment was incidental, and that the Veteran started with Fluoxetine which did not have an adverse side effect of weight gain. In December 2019, a different VA examiner issued negative nexus opinions addressing the Veteran's weight gain and DMII as secondary to his PTSD and alcohol abuse disorder. The examiner found no credible medical evidence to support causal links between alcohol abuse and DMII, PTSD and DMII, alcohol abuse and obesity, PTSD and obesity, and Duloxetine and obesity. However, the June 2015, October 2019, December 2019, and January 2020 opinions do not address the crux of the Veteran's argument, which is that his mental health symptomatology caused decreased energy and motivation, and also caused him to not eat correctly or stay active, thereby causing weight gain that led to both OSA and DMII. See August 2021 Hearing Transcript. The Board therefore finds that remand is warranted to obtain VA medical opinions addressing the Veteran's contentions, as well as evidence submitted by the Veteran in August 2021, which includes articles in support of his claims. Finally, the Board notes that the Veteran's representative submitted a general challenge regarding the qualifications of the October 2019, December 2019, and January 2020 VA examiners. See August 2021 Statement in Support of Claim. Typically, the Veteran would be sent the VA examiners' credentials and the body of the decision would require factual findings of the examiners' competency in providing a medical opinion. See Francway v. Wilkie, 940 F.3d 1304, 1308-1309 (Fed. Cir. 2019). As the Board is requesting new opinions, the Veteran's August 2021 Francway challenge is moot. The matters are REMANDED for the following action: 1. Forward the Veteran's file to an appropriate examiner(s) to provide the Veteran with opinions addressing the nature and etiology of his OSA and DMII disabilities. The examiner(s) must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinions, and such review should be noted in the examination report(s). The need for a clinical examination(s) is left to the discretion of the examiner(s). The examiner is asked to address the following: (a.) Whether the Veteran's OSA and/or his DMII had its onset during military service, was caused by, or is otherwise related to, the Veteran's military service, to include the Veteran's reports of weight gain onset during service. (b.) Whether the Veteran's OSA and/or his DMII was caused or aggravated by service-connected disability symptomatology or treatment of service-connected disability, to include medication, and to include whether a service-connected disability caused or aggravated the Veteran's OSA and/or his DMII, with obesity as an intermediate step. In answering this, the examiner must specifically answer whether the Veteran's service-connected disabilities and symptomatology and/or their treatment, to include medications, (1) caused the Veteran to become obese; (2) if so, was the obesity a substantial factor in causing the Veteran's OSA and/or his DMII; and (3) whether the Veteran's OSA and/or his DMII would not have occurred but for the obesity caused by the service-connected disabilities. The term "aggravation" means any incremental increase in disability any additional impairment of earning capacity of a disability beyond its natural progression, regardless of permanence, at any time during the course of the period on appeal. If aggravation is found, please identify, to the extent possible, the baseline level of disability prior to the aggravation. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner should specifically address the Veteran's contentions that his PTSD symptomatology caused decreased energy and motivation, and caused him to not eat correctly or stay active, thereby causing weight gain that led to both OSA and DMII. The examiner must consider and address the articles submitted by the Veteran in August 2021. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to speculation, he or she must provide complete explanations stating why this is so. In so doing, the examiner must 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(s). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.