Citation Nr: 22016347 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-33 838 DATE: March 22, 2022 ORDER New and material evidence having been received, the claim for a sleep disorder is reopened. REMANDED Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a March 2012 rating decision, the RO denied the Veteran's claim for service connection for a sleep disorder; the Veteran did not appeal that decision or submit new and material evidence during the appeal period and that decision is final. 2. Some of the evidence received since the March 2012 final denial is new and relates to an unestablished fact necessary to substantiate the claim for service connection for a sleep disorder. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for a sleep disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 2002 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is of record. Whether new and material evidence has been received to reopen the claim for service connection for a sleep disorder The Veteran initially filed a claim for service connection for a sleep disorder in September 2011, which was denied in a March 2012 rating decision. The Veteran did not perfect an appeal or submit new and material evidence within one year of that decision. Therefore, the March 2012 rating decision became final. See 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). The Veteran subsequently filed a claim for sleep apnea in January 2017. The RO treated this claim as an original claim and denied the claim in the January 2017 rating decision that is the subject of this appeal. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board finds that the Veteran's January 2017 sleep apnea claim falls within the scope of his September 2011 sleep disorder claim. As the denial of the Veteran's September 2011 sleep disorder claim became final, the initial issue before the Board is whether new and material evidence has been received. Evidence added to the record since the March 2012 rating decision includes an October 2016 diagnosis of sleep apnea. This evidence is new, as it was not previously submitted to agency decision makers. It is also material, as it raises a reasonable possibility of substantiating the claim for service connection. Accordingly, the Board finds that new and material evidence has been received and the claim for service connection for a sleep disorder is reopened. REASONS FOR REMAND Service connection for sleep apnea is remanded The Veteran contends that his sleep apnea began during service. At his April 2018 Decision Review Officer (DRO) conference, the Veteran testified that in 2005 to 2006 he started to notice that he could not stay asleep at night and that he was always fatigued due to a lack of sleep. The record also contains an April 2018 statement from the Veteran's wife, reporting that "somewhere around late 2006/2007 I started to notice he was a bit restless when he would sleep and started to snore and almost what felt like a twitch or shake, he would do throughout the night." The Veteran's service treatment records are silent for sleep complaints apart from his April 2009 Report of Medical History, on which he reported frequent trouble sleeping and noted that he was "always waking up at night." A VA medical opinion was obtained in May 2018. The examiner opined that it was less likely than not that the Veteran's sleep apnea began during service. The examiner's rationale was that snoring is ubiquitous and not diagnostic of sleep apnea, the Veteran's wife's statement does not describe symptoms diagnostic of sleep apnea, and the Veteran's statement of "always waking up at night" in service is not diagnostic of sleep apnea. Additionally, regarding the Veteran's 2016 sleep study results, the examiner noted: "[w]ith no apneas, and no hypoxia [] it is problematic to attribute arousals to the limited number of hypopneas reported." As noted by the Veteran's representative at the Veteran's July 2021 Board hearing, this statement by the examiner creates confusion. The record also contains a November 2021 opinion from Dr. C. M., the Veteran's private treating physician. Dr. M. noted that the Veteran started having symptoms of loud snoring and daytime sleepiness in 2008-2009. She opined that these in-service symptoms were more likely than not due to undiagnosed obstructive sleep apnea. However, Dr. M. provided inadequate rationale for that statement. Accordingly, the Board finds that remand for an addendum opinion is necessary. The matter is REMANDED for the following action: 1. Provide the claims file to a VA examiner to obtain a medical opinion regarding the claim for service connection for sleep apnea. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. After review of the claims file, the examiner should respond to the following: (a) Whether it is at least as likely as not (i.e., an approximate balance) that the Veteran's sleep apnea had its onset during active service or is related to any in-service disease, event, or injury. The examiner should explain why or why not, to include addressing the Veteran's reported in-service symptoms of "always waking up at night," waking up gasping for air, snoring, twitching/shaking during sleep, not getting enough sleep, and daytime fatigue. The examiner should also address whether the sleep apnea is as likely as not etiologically related to the Veteran's reported exposure to dust storms and burn pits during his deployment . (b) If not arising in service, whether it is at least as likely as not that the Veteran's service-connected PTSD causes or aggravates (i.e., causes an increase in severity of) his sleep apnea. The examiner should explain why or why not, to include addressing the Veteran's report at his July 2021 Board hearing that his PTSD aggravates his sleep apnea by impairing his ability to use his CPAP device for the full night. If aggravation is present, the examiner should indicate, to the extent possible, the baseline level of sleep apnea before the onset of the aggravation. 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Jesteadt, 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.