Citation Nr: 22050737 Decision Date: 09/06/22 Archive Date: 09/06/22 DOCKET NO. 19-00 643 DATE: September 6, 2022 ORDER The appeal as to whether new and material evidence has been received to reopen service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. In a December 2015 rating decision, service connection for obstructive sleep apnea was denied; the Veteran did not appeal this decision, and no new and material evidence was received within the appeal period. 2. Evidence received since the December 2015 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for sleep apnea, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. A December 2015 rating decision, which denied service connection for obstructive sleep apnea, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence added to the record since the December 2015 denial is new and material, and the claim for entitlement to sleep apnea is reopened. 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 September 2000 to September 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2022. A transcript of that hearing is of record. Although the Agency of Original Jurisdiction (AOJ) reopened both claims, the Board notes that the September 2017 rating decision as to sleep apnea and a low back condition, as well as the October 2017 rating decision as to a low back condition, had not become final when the May 2018 rating decision on appeal was issued. Therefore, the claim of service connection for a low back disability need not be reopened. The Board still must make this threshold preliminary determination on the sleep apnea claim because it affects the Board's jurisdiction to adjudicate this claim on its underlying merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. The appeal as to whether new and material evidence has been received to reopen service connection for sleep apnea It is necessary to decide whether this claim can be reopened before the Board can adjudicate it on the merits. The Veteran contends that he has submitted new and material evidence sufficient to reopen a claim of service connection for sleep apnea. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. 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). Service connection for obstructive sleep apnea was originally denied by a December 2015 rating decision because there was no link between the Veteran's sleep apnea and service. The Veteran did not appeal this rating decision, and no new and material evidence was received within the one-year appeal period after the December 2015 rating decision was issued. As such, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the last final denial of service connection for sleep apnea in December 2015, VA has received hearing testimony from the Veteran that people told him that he snored in service. The Veteran testified that he believes that he developed sleep apnea during service, and that his service-connected posttraumatic stress disorder (PTSD) made it worse. He also believes that his service-connected gastroesophageal disease (GERD) may be part of the sleep apnea. This evidence is relevant to the existence of a nexus between service and the Veteran's current sleep apnea, as well as the existence a nexus between the disability and a service-connected disability. Such new and material evidence having been received, the claim of service connection for sleep apnea is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. A February 2019 medical opinion found that the Veteran's lumbosacral strain, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. As rationale, the clinician explained that temporary aggravation is plausible, but there is no evidence of permanent aggravation of the claimed pre-existing lumbosacral strain. The clinician also stated that the lumbosacral strain was less likely than not incurred in or caused by a claimed in-service event, with the rationale that there is no evidence in the records to support or provide evidence of chronicity of the condition or continuity of care since service ended. This opinion is inadequate because the Veteran's March 2000 entrance examination indicates a pre-existing asymptomatic scoliosis, not lumbosacral strain. It is not clear from the record if the Veteran's current lumbosacral strain represents a permanent aggravation of the pre-existing scoliosis, or if it is a separate disability unrelated to the scoliosis. Upon remand, a new opinion should be obtained that considers these possibilities. Additionally, the record reflects that relevant private treatment records have been scanned into VistA Imaging but have not been associated with the claims file. Upon remand, these records should be obtained. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder and gastroesophageal reflux disease is remanded. Obtain an examination as to whether the Veteran's sleep apnea is caused or aggravated by service-connected PTSD or GERD. The September 2017 examination as to whether the sleep apnea is secondary to PTSD is not adequate because it does not contain an aggravation opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all treatment records scanned into VistA Imaging, including the MRI of the Veteran's lumbar spine from Doctors Hospital in July 2016, as well as the chiropractic records from November 2017. 2. After completion of the above, schedule the Veteran for a VA examination regarding the etiology of his low back disability. Copies of all pertinent records must be made available to the examiner for review. After reviewing the relevant evidence, the examiner is asked to provide a response to the following: (a.) Is the Veteran's current lumbosacral strain a progression of the preexisting asymptomatic scoliosis noted in the March 2000 entrance examination, or is it a separate disability unrelated to the preexisting asymptomatic scoliosis? (b.) If the Veteran's lumbosacral strain is a progression of the preexisting asymptomatic scoliosis, did the scoliosis, which existed prior to service, at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatably) due to the natural progress of the disease? The clinician must discuss the fact that the scoliosis was asymptomatic upon entrance, but that the Veteran reported sharp pain in his lower back and quad in September 2002. (c.) If the Veteran's lumbosacral strain is unrelated to the preexisting asymptomatic scoliosis, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to carrying heavy loads in his backpack during service? The clinician must discuss the September 2002 report in the Veteran's STRs of pain in his quad and lower back. The clinician is advised that the Veteran denied back pain is July 2003, and first sought treatment for back pain after service in February 2007, at which point he reported the pain had its onset more than one month ago. The Veteran reported in his January 2022 hearing that he has had back problems since service. Each opinion offered must be supported by a complete rationale. 3. Obtain an examination from an appropriate examiner regarding the etiology of the Veteran's sleep apnea. After reviewing the relevant evidence, the examiner is asked to provide the following opinions: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea is related to service? The clinician is advised that in January 2022 hearing testimony the Veteran reported that people told him that he snored in service, and that a December 2015 VA examination report indicates that the Veteran reported that he does not recall anyone telling him about loud snoring while he was sleeping. (b.) If the Veteran's sleep apnea is not related to service, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea is proximately due to service-connected PTSD and/or GERD, or aggravated (defined as any increase in disability) by service-connected PTSD and/or GERD? Each opinion offered must be supported by a complete rationale. 4. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.