Citation Nr: 22018229 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-67 448 DATE: March 28, 2022 ORDER Reopening the previously denied claim of entitlement to service connection for a sleep disorder is granted. Entitlement to service connection for sleep apnea as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for a gastric condition, to include hemorrhoids, is remanded. FINDINGS OF FACT 1. In a December 2014 rating decision, the Regional Office (RO) denied the Veteran's claim of entitlement to service connection for a sleep disorder and notified the Veteran of its decision. The Veteran did not file a notice of disagreement (NOD) to appeal the December 2014 decision, and it became final. 2. The additional documentation submitted since the December 2014 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a sleep disorder. 3. The Veteran's sleep apnea is proximately due to service-connected PTSD. 4. The Veteran's headaches began during active service. CONCLUSIONS OF LAW 1. The December 2014 rating decision denying service connection for a sleep disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As new and material evidence submitted since the December 2014 denial has been received, the criteria for reopening the claim of service connection for a sleep disorder are met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for sleep apnea as secondary to service-connected disease PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2013 to September 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) RO. In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. New and Material A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing 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). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold, with the phrase "raise a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. See Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Petition to reopen the previously denied claim of entitlement to service connection for a sleep disorder The Veteran's claim for entitlement to service connection for a sleep disorder was previously denied in a December 2014 rating decision because the RO determined that the Veteran did not have a diagnosed sleep disorder at the time. Since the December 2014 rating decision, evidence including medical records, medical opinions, and hearing testimony have been submitted. The Board concludes that the evidence received since the December 2014 rating decision is new and material as it is not cumulative and, when considered with previous evidence of record, relates to the unestablished elements necessary to substantiate the claim. Thus, the claim of entitlement to service connection for a sleep disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether the evidence weighs persuasively against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for sleep apnea The Veteran asserts that he is entitled to service connection for sleep apnea. The Board concludes that the Veteran has a current disability that is the result of his service-connected PTSD. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Although service treatment records are silent for any complaints or diagnosis related to a sleep disorder, the Veteran provided testimony about his sleep troubles during service. At the Board hearing, the Veteran explained that because he was a trauma nurse during service, he often self-treated his ailments. He stated that he experienced a lack of sleep due to his shift schedule while serving in Afghanistan, and that he was exhausted during the day due to not sleeping at night. The Veteran indicated that after service discharge, his spouse at the time noticed that he often stopped breathing during sleep. In September 2015, the Veteran underwent a sleep study and was diagnosed with obstructive sleep apnea. During the same month, the Veteran's primary care VA physician, Dr. J.L., provided a letter stating he has treated the Veteran since March 2015, and is familiar with his service treatment records and post-service medical records. He noted that the Veteran had no known history of sleep apnea prior to his military service. Therefore, he opined that it is more likely than not that the Veteran's sleep apnea originated during service and is also secondary to the Veteran's service-connected PTSD. In December 2017, Dr. J.L. provided another letter in support of the Veteran's claim, again opining that it is more likely than not that his sleep apnea is secondary to service-connected PTSD. Dr. J.L. discussed medical literature and research that determined sleep impairment is a core feature of PTSD. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea as secondary to service-connected PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for headaches The Veteran also seeks service connection for headaches. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Post-service medical records show the Veteran was diagnosed with and treated for headaches beginning in August 2015. At that time, the Veteran reported that his headaches began in 2013 when he was deployed to Afghanistan. He was prescribed medication to manage his headaches. Service treatment records do not indicate the Veteran sought treatment for headaches. However, as noted above, the Veteran was a trauma nurse in service, and he reported during the Board hearing that he treated his headaches himself. He also testified that his headaches during service sometimes lasted for days, and he used blackout curtains in his room to help block out the light. The Veteran stated that his headaches have continued since service, as noted in his post-service medical records. Additionally, in support of his claim the Veteran submitted four lay statements in October 2015 from individuals who served with him in Afghanistan. They each recalled that the Veteran complained of experiencing debilitating headaches while in service. The Board acknowledges that the Veteran was not afforded a VA examination, and there are no medical nexus opinions of record regarding the etiology of his headaches. However, given the Veteran's medical background as a trauma nurse and self-treatment during service, the Board finds that his account of continuity of headaches since service to be credible and of great probative value. He is competent to report on the headaches he experiences based on lay observation, and the record shows he has been diagnosed with headaches that require prescription medication for treatment. Accordingly, after resolving reasonable doubt in favor of the Veteran, service connection for headaches is granted. REASONS FOR REMAND 1. Entitlement to service connection for a gastric condition, to include hemorrhoids is remanded. Regarding the issue of entitlement to service connection for a gastric condition, the Veteran's VA Form 9, Substantive Appeal, did not include this issue. However, the issue was certified to the Board by the RO, and testimony was given about his gastric condition at the Board hearing. Thus, the Board will waive the issue of timeliness and will exercise jurisdiction over the claim. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (finding that VA waives objection to the timeliness of a Substantive Appeal by taking actions that lead the Veteran to believe that an appeal was perfected). During the Board hearing, the Veteran indicated that he currently has reflux and hemorrhoids. He asserted that his gastric issues began during service, possibly due to the quality of the military food he was provided while in Afghanistan. Service treatment records do not contain any documentation of treatment for any gastric condition. Post-service records show the Veteran was provided with a colonoscopy in March 2015, which revealed internal hemorrhoids. VA treatment notes also show the Veteran has gastroesophageal reflux disease without esophagitis. The Board finds the Veteran's claim of having gastric conditions requires additional development. Remand is required to afford the Veteran a VA examination to identify each current gastric condition, and to request a VA examiner opine as to whether any such condition is related to his active service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his gastric conditions. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Identify each diagnosis of a gastric condition. (b.) For each diagnosis, state whether it is at least as likely as not related to service, including consuming Meal, Ready-to-Eat (MRE) food and having a lack of fresh produce while serving in Afghanistan. Provide a rationale to support the opinions. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.