Citation Nr: 22019546 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-10 392 DATE: April 1, 2022 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In an August 2014 rating decision, the RO, inter alia, denied service connection for sleep apnea. The Veteran was duly notified of the decision and his appellate rights, but he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of notification. 2. Evidence received since the final August 2014 rating decision denying service connection for sleep apnea relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the claim for service connection for sleep apnea. CONCLUSIONS OF LAW 1. The August 2014 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claim of service connection for sleep apnea. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2003 to November 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia, which, inter alia, confirmed and continued the previous denial of service connection for sleep apnea. In November 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for sleep apnea is granted. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims to reopen such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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 submitted 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, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). In April 2014, the Veteran filed an intent to file a claim, followed by a formal claim for service connection for sleep apnea in June 2014. In an August 2014 rating decision, the RO, inter alia, denied the claim, finding that the evidence did not show that sleep apnea was related to the Veteran's service-connected posttraumatic stress disorder (PTSD), nor was there any evidence of sleep apnea during the Veteran's active service. The RO considered the Veteran's service treatment records, which were negative for complaints or diagnosis of sleep apnea. The RO noted that VA solicited medical evidence from the Veteran regarding his claim; however, no evidence had been received as of the date of the decision. The record on appeal shows that the Veteran was duly notified of the RO's decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the August 2014 rating decision. The Veteran does not contend otherwise. Thus, the August 2014 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for sleep apnea. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In the April 2016 rating decision on appeal, the RO reopened the claim and denied it on the merits. Despite the RO's finding, the Board is obligated by statute (38 U.S.C. §§ 5108, 7104(b)) to address whether new and material evidence has been submitted prior to addressing the merits of the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, despite the RO's findings, the Board must make a determination of whether new and material evidence has been presented to reopen the claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final August 2014 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the August 2014 rating decision includes a November 2014 sleep study showing severe obstructive sleep apnea. See November 2014 sleep study received in February 2016. Also received since the final rating decision is a medical treatise indicating that studies have revealed a significant association between psychiatric disorders and sleep apnea. See medical treatise received in February 2016. The additional evidence also includes a statement from the Veteran's spouse, C.J., to the effect that the Veteran began snoring loudly and experiencing pauses in breathing during sleep after returning home from active duty. See December 2015 statement from C.J. received in February 2016. Also received since the final rating decision was an April 2016 VA examination noting a diagnosis of obstructive sleep apnea. The additional evidence received since the August 2014 rating decision also includes an opinion from a private physician, Dr. A.S., and accompanying medical literature, indicating a strong association between PTSD and sleep apnea. See August 2016 opinion from Dr. A.S. and accompanying medical literature received in September 2016. Also received is the Veteran's November 2021 Board hearing testimony indicating that he began experiencing symptoms which he believes were associated with PTSD and sleep apnea after returning home from active duty. See November 2021 Transcript of Hearing, pages 2-5. After reviewing the record, the Board finds that new and material evidence has been received sufficient to reopen the claim. Specifically, the November 2014 sleep study and April 2016 VA examination indicating a diagnosis of obstructive sleep apnea, the statement from the Veteran's spouse, C.J., indicating that the Veteran began snoring loudly and experiencing pauses in breathing during sleep after returning home from active duty, the private opinion from Dr. A.S. and medical literature indicating a strong association between PTSD and sleep apnea, and the Veteran's November 2021 Board hearing testimony indicating that he began experiencing symptoms associated with PTSD and sleep apnea after returning home from active duty, were not before agency decision-makers at the time of the August 2014 rating decision. These records are therefore new, and directly address unestablished facts necessary to substantiate the claim of service connection for sleep apnea particularly evidence of a current disability which may be associated with service or a service-connected disability. When presumed credible, this evidence raises a reasonable possibility of substantiating the claim and triggers VA's duty to assist. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See Shade, 24 Vet. App. at 117. Although this evidence is sufficient to reopen the claim, it is not sufficient to award the benefits sought. For that reason, additional development is necessary. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea is secondary to his service-connected PTSD. In support of his claim, the Veteran submitted a medical treatise indicating that studies have revealed a significant association between psychiatric disorders and sleep apnea. See medical treatise received in February 2016. The Veteran also submitted a statement from his spouse, C.J., to the effect that the Veteran began snoring loudly and experiencing pauses in breathing during sleep after returning home from active duty. See December 2015 statement from C.J. received in February 2016. The Veteran was afforded a VA examination in April 2016. The examiner noted a diagnosis of obstructive sleep apnea. The Veteran reported that after he was stationed in Iraq, he always felt tired and felt like he never got any sleep regardless of how long he slept. He reported current use of a CPAP machine, which helped with his tiredness. After examination of the Veteran and review of the claims file, the examiner determined that the Veteran's sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The examiner opined in pertinent part, The medical literature states the most common risks associated with Obstructive Sleep Apnea include overweight (BMI 25 or above), nasal congestion, craniofacial abnormalities, fat deposits around upper airway, and increased neck circumference. Other risks include being male, high blood pressure (hypertension), stroke, heart failure, family history, alcohol, sedative medications, tranquilizers, smoking, prolonged sitting, and being older than 65. This veteran is a smoker. Obstructive sleep apnea is not caused by, related to, or aggravated by PTSD. In an August 2016 private medical opinion, Dr. A.S. noted a diagnosis of sleep apnea. The physician indicated that based on his review of medical research, there "seem[ed] to be a strong association with some thought that neural circuits are involved in the development of obstructive sleep apnea in individuals with PTSD." The physician also noted that PTSD seemed to improve in some individuals with continuing treatment of their obstructive sleep apnea. Thus, he noted that continuing support of the Veteran's use of a CPAP would be in the Veteran's best interest. See August 2016 opinion from Dr. A.S. and accompanying medical literature received in September 2016. At the November 2021 Board hearing, noted above, the Veteran testified that he began experiencing symptoms associated with PTSD and sleep apnea after returning home from active duty. See November 2021 Transcript of Hearing, pages 2-5. The Board finds that although the August 2016 private medical opinion raises an indication that the Veteran's sleep apnea is associated with his service-connected PTSD, the opinion is inadequate to support a grant of benefits based on causation. Additionally, the Board finds that the April 2016 VA examination is inadequate, as the examiner did not consider the medical treatise submitted by the Veteran indicating a significant association between psychiatric disorders and sleep apnea, as well as the statement from the Veteran's spouse, C.J., to the effect that the Veteran began snoring loudly and experiencing pauses in breathing during sleep after returning home from active duty. As such, a remand is warranted for an addendum medical opinion. Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum medical opinion addressing the nature and etiology of the Veteran's current sleep apnea. Access to the Veteran's electronic VA claims file must be made available to the examiner for review in connection with the opinion. The need for additional examination of the Veteran is left to the discretion of the clinician rendering the requested opinion. After reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: (a) Is it at least as likely as not that the Veteran's current sleep apnea is caused by his service-connected PTSD? (b) If not, is it at least as likely as not that the Veteran's current sleep apnea is aggravated by his service-connected PTSD? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the disability, prior to aggravation. In providing the requested opinions, the examiner should consider the relevant evidence of record, to include the August 2016 private opinion and accompanying medical literature indicating a strong association between PTSD and sleep apnea, the medical treatise submitted by the Veteran indicating that studies have revealed a significant association between psychiatric disorders and sleep apnea. (c) If not, is it at least as likely as not that the Veteran's sleep apnea was incurred in or is otherwise causally related to his active service? In providing the requested opinion, the examiner should consider the relevant evidence of record, to include the statement from the Veteran's spouse, C.J., to the effect that the Veteran began snoring loudly and experiencing pauses in breathing during sleep after returning home from active duty, and the Veteran's November 2021 Board hearing testimony indicating that he began experiencing symptoms associated with PTSD and sleep apnea after returning home from active duty. The examiner should consider the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran's reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current sleep apnea disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.