Citation Nr: 1138947 Decision Date: 10/19/11 Archive Date: 10/25/11 DOCKET NO. 10-07 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for bilateral shin splints. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Counsel INTRODUCTION The Veteran served on active duty from January 1994 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. A hearing was held in January 2011, in Wichita, Kansas, before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board subsequently remanded the case for further development in June 2011. That development was completed, and the case has since been returned to the Board for appellate review. The issue of entitlement to service connection for bilateral shin splints will be addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has been shown to have sleep apnea that is related to her military service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, sleep apnea was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In the decision below, the Board has granted the Veteran's claim for sleep apnea, and therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for sleep apnea. She has contended that she had symptoms of sleep apnea during her active duty service and was ultimately diagnosed with sleep apnea after her separation from service. Specifically, the Veteran has stated that she experienced symptoms, including waking up exhausted and waking up throughout the night, since 1995 while on active duty. She has claimed that she never reported the symptoms to a physician because she did not like to go to doctors and did not know her symptoms were associated with a medical condition. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a sleep disorder. However, on an April 1997 report of medical assessment, the Veteran did note that she was sick for four days with symptoms that included loss of sleep. The first post-service medical evidence regarding complaints of a sleep disorder was in private treatment records from Dr. K.L.G. dated in July 2004. That evidence documented complaints of fatigue, and diagnoses of fatigue and narcolepsy were provided. The Veteran was referred to a sleep clinic for further evaluation. Records from a private sleep center dated from August 2004 to November 2004 also indicate that the Veteran reported having excessive daytime somnolence for the past 10 years. The Veteran was diagnosed with obstructive sleep apnea syndrome, which was REM related. The Veteran also submitted a letter from L.A.D., M.D., dated in July 2008, stating that she had reported having symptoms of sleep apnea, including early morning fatigue and falling asleep during the day. Subsequent testing showed mild obstructive sleep apnea. The doctor stated that the Veteran's symptoms had been ongoing since the Veteran's military service. The Veteran was afforded a VA examination in November 2009 during which she indicated that she started experiencing excessive daytime sleepiness in May 1994. She also reported waking up feeling as if she had not slept at all. The examiner noted that the Veteran did not seek treatment until 2003, as she did not feel her symptoms were caused by any medical condition. An examination revealed no history of respiratory system neoplasm, pneumothroax, empyema, asthma, cough, hemoptysis, wheezing, dyspnea, anorexia, chest pain, respiratory failure, swelling, fever, or periods of incapacitation. Diaphragm excusion and chest expansion were also normal, and chest x-rays showed no acute processes and clear lungs. There was no pneumonia or frank congestive heart failure. The examiner diagnosed the Veteran as having mild obstructive sleep apnea, as shown by a sleep study, but indicated that the disorder was of an unknown etiology. The examiner stated that he could not opine as to whether the Veteran's sleep apnea was secondary to her subjective complaints of sleep apnea during service without resort to mere speculation. The rationale provided by the examiner indicated that the Veteran stated that she had ongoing sleep apnea symptoms since 1994, but did not seek any treatment until 2003 to 2004. The examiner also noted that there was no mention of the condition in the service treatment records. Despite her mention to her physician in 2004 that she had symptoms since 1994, there was no hard evidence for the condition during military service. Moreover, 10 years after the subjective symptoms reportedly started, the sleep study still showed mild sleep apnea, so it was difficult to determine when the condition actually started. The Veteran was afforded another VA examination for sleep apnea in July 2011. The examiner reviewed the claims file and noted that the date of onset was approximately 2004. The examiner also observed that the Veteran had complaints of daytime hypersomnolence, sleep disruption, and daytime fatigue. There was no evidence of any cardiac history, pulmonary history, orthopnea, or paroxysmal nocturnal dyspnea. A diagnosis of mild obstructive sleep apnea versus idiopathic hypersomnia per sleep study consultation in 2004 was provided. The examiner opined that the Veteran's mild obstructive sleep apnea versus idiopathic hypersomnia was less likely as not caused by or the result of military service. In so doing, the examiner commented that the Veteran's service treatment records showed some common symptoms with acute illness episodes, including some sleep loss. However, the examiner found that the symptoms or complaints that could be correlated to a chronic hypersomnia condition or sleep apnea were not found in service, and there was no diagnosis of such a disorder in the service treatment records. The examiner further noted that there were no complaints of difficulty sleeping or hypersomnolence on the Veteran's initial VA application in 1997, nor was there any mention of sleep apnea symptoms until 2003 or 2004. The examiner stated that, while the Veteran reported her symptoms as ongoing for 10 years in 2004, an earlier 2004 screening noted that the Veteran stated that she didn't sleep as well as she used to sleep. Thus, the examiner stated that it was clear that there was no evidence of obstructive sleep apnea or any other sleep disorder, including idiopathic hypersomnia, in service or within one year of service. The Veteran submitted numerous statements from family and friends regarding her sleep apnea symptoms. The Veteran's husband stated that he first met the Veteran while she was on active duty and recalled her always complaining of being tired. He noted that she would frequently fall asleep watching movies, driving, or spending time with friends. The Veteran's husband also stated that her symptoms had been ongoing to the present time. In addition, the Veteran's parents indicated that the Veteran would fall asleep while driving home for a visit when she was in the military. They stated that she has told them she frequently wakes in the middle of the night and feels tired in the mornings. Statements from friends indicated that the Veteran told them that she would struggle to stay awake or would fall asleep while driving to visit family. They also noted that she complained about how tired she felt throughout the day and indicated that these complaints were present during military service through the present day. The Veteran was also afforded a hearing before a decision review officer in March 2010 and before the undersigned acting Veterans Law Judge in January 2011. During her hearings, the Veteran testified that she had symptoms of sleep apnea, including daytime sleepiness, waking up feeling unrested, and having trouble staying awake. She stated that the symptoms have been occurring since her active service. The Veteran also testified that she did not seek treatment while on active duty because she was not aware that the symptoms were caused by a medical condition. There is no reason to doubt the credibility of the Veteran's statements that she began experiencing symptoms in service and continued to have such symptomatology other than a lack of contemporaneous medical evidence documenting such complaints. The Board may not reject the credibility of the Veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 133 (Fed. Cir. 2006). Indeed, the Veteran has consistently provided the same history regarding the onset of her symptoms. Moreover, the November 2009 VA examiner indicated that he could not provide a nexus opinion without resort to speculation. The Board notes that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Applicable regulations also provide that a finding of service connection may not be based on a resort to speculation or a remote possibility. See 38 C.F.R. § 3.102. The Board does observe that the July 2011 VA examiner reviewed the claims file and rendered a negative nexus opinion. However, the Board notes that the examiner primarily based his opinion on the lack of documentation of a sleep disorder in service or for many years thereafter. As discussed above, the Veteran's reported history has been accepted as credible and cannot be refuted simply because of a lack of contemporaneous medical evidence. Based on the foregoing, there is at least an approximate balance of positive and negative evidence regarding the issue at hand. The Board also observes that the Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current sleep apnea is related to her period of service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for sleep apnea is warranted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for sleep apnea is granted. REMAND As discussed above, the law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The Board notes that the Veteran was diagnosed with and treated for left shin splints during service in February 1994. The Veteran has stated that she has had symptoms, including pain and burning in her shins brought on by running or fast walking, since her military service. She has also submitted numerous statements from family and friends indicating that she has complained of pain and burning in the lower legs and shins after exercising. The Veteran also submitted a letter from her private physician dated in July 2008 stating that she had reported having anterior leg pain in the lower extremities due to marching in the military and standing on the tarmac. It was noted that she was diagnosed with shin splints during military service and that the condition has continued. The physician stated that the Veteran's shin splints seemed to be panning out more of a compartment syndrome and noted that the pain persisted on exercise and improved with rest. The Veteran was also afforded a VA examination in July 2011. However, x-rays showed no acute fractures, dislocations, or acute bony abnormalities bilaterally. There was no bony erosion or destruction seen bilaterally. The examiner provided a diagnosis of intermittent shin complaints with current normal radiographs and physical examination. The examiner also stated that shin splints syndrome or medial tibial stress syndrome was applied to a complex of pain and discomfort in the lower leg occurring after repetitive overuse. Tibial stress reactions result from a progressive process of injury; it begins with periosteal edema, which leads to marrow involvement, and may culminate in a cortical stress fracture. Based on the foregoing evidence, the Board finds that the current diagnosis is unclear. A private physician noted shin splints in the July 2008 letter, yet also mentioned a compartment syndrome. The July 2011 VA examiner also assessed her as having intermittent shin complaints with normal radiographs and a normal physical examination; however, he later referred to shin splints syndrome, medial tibial stress syndrome, and tibial stress reactions. Therefore, the Board finds that an additional VA examination and medical opinion is necessary to determine the current nature and etiology of the Veteran's complaints. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any shin disorder that may be present. To the extent possible, the examination should be performed by an orthopedic specialist. If it is not possible, it should be documented in the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran was treated for left shin splints in February 1994. She has contended that she has continued to have bilateral leg pain since her period of service. The Veteran has submitted lay statements supporting her contention. The examiner should identify all current shin and leg disorders that have been present at any time during the pendency of the appeal. The examiner should specifically state whether the Veteran currently has bilateral shin splints. For each disorder identified, the examiner should comment as to whether it is at least as likely as not that that the disorder is related to her symptomatology in service or is otherwise causally or etiologically related to her military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ JESSICA J. WILLS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs