Citation Nr: 22014765 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 19-09 700 DATE: March 15, 2022 ORDER New and material evidence having been received, reopening of service connection for sleep apnea (claimed as sleeplessness) is granted. New and material evidence having been received, reopening of service connection for Bell's Palsy is granted. Service connection for sleep apnea is granted. Service connection for Bell's Palsy is granted. REMANDED Service connection for bilateral pes planus (claimed as flat feet) is remanded. FINDINGS OF FACT 1. A June 2005 rating decision denied service connection for sleep apnea and Bell's Palsy on the basis that the evidence did not show a current disability. 2. The Veteran did not timely file a notice of disagreement (NOD) following the June 2005 rating decision, and new and material evidence was not received during the one-year appeal period following that decision. 3. Evidence received since the June 2005 rating decision relates to an unestablished fact of a current disability of Bell's Palsy and obstructive sleep apnea. 4. The Veteran has current diagnoses of obstructive sleep apnea and longterm sequelae of Bell's Palsy. 5. Symptoms of sleep apnea began in service and have been present since service separation. 6. Symptoms of Bell's Palsy began in service and have been present since service separation. CONCLUSIONS OF LAW 1. The criteria for reopening service connection for sleep apnea have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for reopening service connection for Bell's Palsy have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for Bell's Palsy have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from December 1990 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision from the Regional Office (RO), which, in pertinent part, denied reopening of service connection for Bell's Palsy, reopened and denied service-connected for sleep apnea, and denied service connection for bilateral flat feet. Service connection for Bell's Palsy was reopened and denied on the merits in a February 2019 Statement of the Case. In November 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Board finds that the duties to notify and assist the appellant in this case have been rendered moot by the grant of service connection for sleep apnea and Bell's Palsy, which is a full grant of the benefits sought on appeal. Service connection for bilateral pes planus is REMANDED for additional development. New and Material Evidence and Service Connection Criteria Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. 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 received 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 VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id at 513. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. 1. Reopening Service Connection for Sleep Apnea 2. Reopening Service Connection for Bell's Palsy In this case, a June 2005 rating decision denied service connection for sleep apnea and residuals of Bell's Palsy on the grounds that the evidence did not show a permanent residual disorder of Bell's Palsy, or an underlying disorder associated with sleeplessness (i.e., no current disability). In June 2005, the Veteran was notified of the rating decision and provided notice of procedural and appellate rights. The Veteran did not submit a timely NOD following the June 2005 rating decision, and new and material evidence was not received during the one-year appeal period following the decision; therefore, the June 2005 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. Since the June 2005 rating decision denying service connection for sleep apnea and Bell's Palsy, VA has received additional evidence that pertains a current disability of sleep apnea and Bell's Palsy. See September 2016 private treatment record, July 2019 VA treatment record. Presuming the credibility of such new evidence for the purpose of reopening the claim, such evidence relates to the unestablished fact of a current disability of sleep apnea and Bell's Palsy, so could reasonably substantiate the issue of service connection for sleep apnea and Bell's Palsy. For this reason, the Board finds that the additional evidence is new and material to reopen service connection for sleep apnea and Bell's Palsy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Service Connection for Sleep Apnea The Veteran contends that symptoms of sleep apnea have been ongoing since about 1999 or 2000 in service. The Veteran testified that he developed symptoms of loud snoring, restless sleep, and daytime fatigue during service, such that he would have to take power naps during his lunch breaks. The Veteran reports that his wife would poke him in the middle of the night to wake him up due to his interrupted breathing while asleep. The Veteran states that he reported problems with sleeplessness, snoring, and apnea during the service separation examination in 2005, but the symptoms were not taken seriously, and he was not referred for additional follow up. The Veteran chose to ignore the sleep apnea symptoms for years after service until his wife convinced him to see a sleep specialist due to concerns for his health. Alternatively, the Veteran contends that the sleep apnea is related to the service-connected posttraumatic stress disorder (PTSD). See November 2021 Board Hearing Transcript; see also June 2016 Claim, July 2017 Notice of Disagreement (NOD), March 2019 correspondence. The Veteran's spouse, who is a registered nurse and has knowledge of the symptoms of sleep apnea, testified that she has been married to the Veteran since 1992, that she first noticed symptoms of sleep apnea after the Veteran's episode of Bell's Palsy (first diagnosed 1999), and that she witnessed the Veteran's loud snoring at night and cessation of breathing while asleep, almost as if the Veteran was holding his breath while asleep. She testified that she had to shake the Veteran during apnea episodes in order for him to resume breathing. Additionally, she reported that the Veteran's symptoms improved immensely after he started CPAP therapy. See November 2021 Board Hearing Transcript. Initially, the Board finds evidence of a current diagnosis of obstructive sleep apnea, as reflected in the September 2016 private sleep study. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of a sleep disorder in service that continued after service separation, and was later diagnosed as obstructive sleep apnea, that is, was directly "incurred in" service. The Veteran and his spouse have provided credible lay testimony and statements of an onset of sleep disorder symptoms during service, such as loud snoring, witnessed apnea, and restless sleep with hypersomnolence throughout the day. The February 2005 service separation Report of Medical History shows that the Veteran reported problems with frequent trouble sleeping and expressed that he was unable to unable to go to sleep at night, and got very little sleep. An April 2005 VA examination provided prior to service separation also shows that the Veteran endorsed continued problems with sleeplessness. Specifically, the Veteran reported that he had trouble staying asleep at night, he felt aroused and did not go into REM sleep, and he had problems with fatigue. He endorsed plans to get a sleep study in the future. However, the VA examiner assessed that there was insufficient evidence to make a diagnosis of an acute chronic disorder at that time. See February 2005 service treatment record, April 2005 VA examination report. Post-service treatment records show that the Veteran endorsed continued symptoms of general fatigue, loud snoring, and occasional morning headaches. A September 2016 sleep study confirmed severe sleep apnea, for which CPAP therapy was recommended. See September 2016 private treatment record; June 2017 Disability Benefits Questionnaire; May 2016, August 2016, October 2016 VA treatment records. The VA examiner in December 2016 opined that it is less likely than not that the Veteran's sleep apnea was incurred in or caused by service. The VA examiner explained that, although the Veteran complained of sleeplessness in-service, he was diagnosed with sleep apnea 11 years after service and difficulty sleeping alone is not sufficient evidence of sleep apnea. The VA examiner noted that the service treatment records do not document other symptoms of sleep apnea such as daytime hypersomnolence, morning headaches, heavy snoring, waking up gasping for air or witnessed apnea spells; however, the opinion is of little probative value as it relied on the absence of reported symptoms in the medical records and did not consider the Veteran's credible lay reports during the VA examination and in written statement of symptoms of loud snoring, witnessed apnea, and significant daytime fatigue during service, which the Veteran's spouse, a registered nurse also observed, and which the Board finds as a fact occurred. The April 2005 VA examination report also shows that a history of the Veteran reporting problems falling asleep, failure to achieve REM sleep due to feeling aroused while asleep, and problems with fatigue while still in service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis but cannot reject the opinion solely because the history was from the veteran). While sleep apnea is not a chronic disease listed under 38 C.F.R. § 3.309(a), as indicated above, the Board has found the evidence at least in equipoise on the question of whether the Veteran had sleep apnea symptoms that began during service and continued since service separation, which symptoms were later diagnosed as obstructive sleep apnea, thus tending to show direct service onset or incurrence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d). The Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that symptoms of a sleeping disability (later diagnosed as obstructive sleep apnea) began in service, so was "incurred in" service. The grant of direct service connection renders all other theories of service connection moot. 4. Service Connection for Bell's Palsy The Veteran contends that service connection for Bell's Palsy is warranted. The Veteran testified that he was first diagnosed with Bell's Palsy in 1999 or 2000, after he returned from his deployment to Kosovo. The Veteran contends that the symptoms appeared to resemble a stroke in service, as he awakened with a facial droop and had difficulty doing anything with the face including talking. The Veteran testified that the symptoms never fully resolved, as he had left-sided facial drooping and numbness of the face and eye due to Bell's Palsy, which has continued to this day. Alternatively, the Veteran asserts that his Bell's Palsy is related to the service-connected PTSD. See November 2021 Board Hearing Transcript; see also June 2016 Claim, July 2017 NOD, March 2019 correspondence. Initially, the evidence of record shows that the Veteran has been diagnosed with longterm sequelae of Bell's Palsy. See July 2019 VA treatment record. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of a Bell's Palsy in service that continued after service separation, that is, whether Bell's Palsy was directly "incurred in" service. March 1999 service treatment records shows that the Veteran presented with left upper lip numbness that progressed to involve primarily his lower face and affected his left forehead, left arm, and left lower extremity to a lesser degree. Examination revealed decrease sensation on the left side of the face and slightly decreased sensation in the left hemisphere of the body, even though a brain computed tomography (CT) was normal. Diagnosis was possible early Bell's Palsy. In November 2000 the Veteran endorsed persistent left facial numbness that had not resolved, in addition to mild left facial droop and excess drooling. Diagnosis was again Bell's Palsy. During the February 2005 service separation examination and the April 2005 VA examination, the Veteran reported continued residual symptoms of facial numbness and droop due to Bell's Palsy. See March 1999, November 2000, February 2005 service treatment records; see also April 2005 VA examination report. Post-service treatment records from 2007 through 2019 show that the Veteran has continued to endorsed symptoms of left-sided facial numbness and facial droop, drooling from the left side of the mouth, as well as dry eye due to Bell's Palsy. In July 2019 a VA neurologist noted slight left ptosis, decreased left facial sensation, and slightly decreased left nasolabial fold upon physical examination. The VA neurologist diagnosed long-term sequalae of Bell's Palsy. Additionally, the neurologist noted that the Veteran belongs in the small percentage of people who do not fully recover from Bell's Palsy. See February 2007, May 2016, August 2018, September 2018, July 2019 VA treatment records. As discussed above, the evidence shows that symptoms of Bell's Palsy began during service and have continued since service separation. A treating VA neurologist has diagnosed long-term sequelae of Bell's Palsy and opined that the Veteran's Bell's Palsy has never full resolved, which tends to support in-service incurrence. Given the competent and credible medical and lay evidence showing an onset of Bell's Palsy during service, and continued symptoms and sequelae of Bell's Palsy since service separation, the Board has resolved reasonable doubt in the Veteran's favor in finding that the current Bell's Palsy was directly incurred in service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The grant of direct service connection renders all other theories of service connection moot. REASONS FOR REMAND 5. Service connection for bilateral pes planus is remanded. The Veteran contends that his bilateral foot disorder was worsened by poor foot gear provided by the Army, namely, participating in physical training, including approximately 8-mile marches and runs, and walking on his feet while working 12-hour shifts as a respiratory specialist during service. The Veteran testified that he did not know he had flat feet when he entered service, as he never had any problems with his feet prior to service, and began to develop pain in the feet during service, and eventually received treatment in the podiatry clinic at Moncrief Army Hospital while stationed at Fort Jackson, South Carolina from 1992 to 1994. The Veteran testified that he was treated with custom shoes and orthotics, which improved the bilateral foot pain. See November 2021 Board Hearing Transcript. The available service treatment records are silent for any records of treatment for an orthopedic foot condition during service. Given lay reports of in-service treatment for foot pain at Moncrief Army Hospital between 1992 and 1994, the RO should attempt to obtain any outstanding treatment notes for the claimed bilateral flat foot from this facility. Service connection for bilateral pes planus is REMANDED for the following action: The RO should request any outstanding service treatment records pertaining to the treatment of a bilateral foot disorder for the period from January 1992 to December 1994, to include all sick call and hospital records from the Moncrief Army Hospital at Fort Jackson, South Carolina. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, S. 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.