Citation Nr: 1309119 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 09-13 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for pulmonary sarcoidosis. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Veteran and T.N. ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to June 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Jurisdiction over the matter was transferred to the Chicago, Illinois RO during the pendency of the appeal. In September 2011, the Veteran and her friend, T.N., testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In February 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) for additional development. It has been returned to the Board for appellate consideration. In the instant decision, the Board grants the Veteran's appeal as to whether service-connection for sarcoidosis is warranted. Because additional development is needed to determine whether service connection is warranted for sleep apnea, the Board has separated the issues on the title page. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington DC. FINDINGS OF FACT The preponderance of competent and credible evidence of record shows that the Veteran had pulmonary sarcoidosis during active service and has had pulmonary sarcoidosis during the course of her claim and appeal. CONCLUSION OF LAW The criteria for service connection for pulmonary sarcoidosis have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303(b) 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). Additionally, there are certain duties required of a Veterans Law Judge in taking testimony during a hearing. See 38 C.F.R. § 3.103(c)(2) (2012); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010). The only decision rendered in the instant document is the decision to grant the Veteran's appeal as to entitlement to service connection for pulmonary sarcoidosis. As this decision is fully favorable to the Veteran, even if the duties just mentioned were not met, no prejudice to the Veteran could have resulted. Therefore, no further discussion of these duties is necessary. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2011). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Service treatment records, that is, records of treatment of the Veteran by the service department during service or records obtained from the service department, do not mention sarcoidosis. A March1993 report of medical examination for the purpose of separation from active service provides no indication of sarcoidosis or any respiratory condition. Clinical evaluation of the lungs and chest was normal. There is no evidence on this examination report of an abnormal chest x-ray. In an associated report of medical history, the Veteran did not indicate any pulmonary symptoms or condition. She did endorse that she either then had or previously had hay fever. Also associated with the service treatment records is a narrative summary of a nine day January 1989 admission at a U.S. Navy hospital. This states that the Veteran was admitted to Swedish American Hospital one week prior to the Naval Hospital admission. This service treatment record report addresses psychiatric treatment. It does not mention a pulmonary condition, to include sarcoidosis. Records obtained from the service department do not include the Swedish American Hospital records. Those records were later submitted by the Veteran and also obtained directly from Swedish American Hospital with VA's assistance. The Board addresses the Swedish American Hospital records later in this discussion when it addresses a March 2012 VA medical opinion. The Veteran first filed a claim of entitlement to service connection for conditions other than sarcoidosis in October 1993. She did not mention pulmonary problems. A December 2007 VA treatment note documents that the Veteran's first visit to VA. She did not report any pulmonary problems. The clinician noted that an updated x-ray was to be obtained as the Veteran had an old spot on her lungs noted years ago. The first mention of pulmonary problems is the Veteran's July 2008 claim in which she stated that she had a current lung condition and that while she was in military service she had a spot on her lungs, the military physicians did not know what it was, and they did not treat her. There is again no documentation of this in the service treatment records. The report of a May 2008 computed tomography (CT) scan includes that the Veteran had calcified right hilar nodes and a calcified right lower lobe and splenic calcifications suggestive of old granulomatous disease. Also noted was that other findings, including mediastinal and hilar adenopathy, raised the possibility of sarcoidosis. A June 2008 VA pulmonary consult documents that physical examination revealed no significant adenopathy of the neck. The physician recommended a positron emission tomography (PET) scan to further evaluate her condition following her CT scan. The report of a June 2008 PET scan includes an impression of extensive hilar and mediastinal adenopathy in both lungs and that one possibility was pulmonary sarcoid with lung involvement. July 2008 VA surgical consult notes document that surgical treatment for pre-tracheal and bilateral hilar adenopathy was being considered. The assessment included probable sarcoidosis or other granulomatous disease. VA treatment notes from later that month document that a PET scan showed granulomatous changes and adenopathy. Assessment was unknown lung disease, hilar adenopathy, and sleep apnea. An October 2008 statement signed by "J.L.G.," M.D. documents a diagnosis of benign sarcoidosis. An October 2008 report signed by "S.N.H.," M.D. includes a diagnosis of sarcoidosis with fairly extensive pulmonary involvement. In January 2009, the Veteran underwent a VA respiratory diseases examination. The examiner diagnosed sarcoidosis. However, he stated that the Veteran was not being treated for sarcoidosis, and that sarcoidosis is a benign finding and is generally not treated. The examiner provided a medical opinion, stating that it is less than likely that the sarcoidosis was related to the findings on imaging studies done while in the military. The examiner, a clinical nurse practitioner, stated that she had discussed the case with a pulmonologist at the Regional Medical Center in Rapid City and that the pulmonologist told her that it is difficult to answer the question because no biopsy was done at the time of the findings twenty years earlier. The examiner explained that the pulmonologist could not state with any certainty, but that the probability that the condition during service was sarcoidosis was less than 50 percent. The examiner stated that she also discussed the case with a radiologist who does fee services work for VA and he opined that it was not likely that the findings from 20 years earlier represented the first manifestation of the condition. Aside from referencing two medical journals, which essentially stated that the etiology of sarcoidosis was unknown but that there could be a genetic component, there is no associated explanation provided by the pulmonologist, the radiologist, or the examiner, as to why it was not likely that the findings during service were evidence of the first manifestation of her sarcoidosis. VA treatment notes from April 2009 to November 2009 include discussion as to whether the Veteran had sarcoidosis. Also noted in April 2009 was that she had reported breathing problems and that it was possible that a mild decrease in diffusion capacity of the lung for carbon monoxide (DLCO) was due to sarcoidosis. At that time clinicians were waiting on cytopathology opinions to determine the exact nature of the pulmonary disorder. A November 2009 pulmonary clinic treatment note includes an explanation that she had presumptive sarcoidosis based on pathology reports from outside hospitals, that CT chest scan and biopsies support the diagnosis of sarcoid disease, and that given that the treatment did not involve treating underlying sarcoidosis with steroids, it was decided to not conduct further invasive studies to definitively prove sarcoidosis. March 2010 notes document a mild decline in diffusion capacity. The plan was to not treat the sarcoidosis at the time. A September 2010 pulmonary diagnostic study report again noted that the Veteran's DLCO was reduced, possibly due to sarcoidosis, but that no treatment for sarcoidosis was necessary at the time. These notes tend to support the finding that the Veteran has pulmonary sarcoidosis. The present disability element of the Veteran's claim of entitlement to service connection for pulmonary sarcoidosis is met. Pursuant to the Board's February 2012 Remand, the treatment notes from the Veteran's primary care practitioner, "J.H.," a physician assistant, were added to the claims file. In those March 2009 notes, J.H. indicated that the Veteran had a very obvious history while in the service of granulomatous-type changes in her chest that correlates very strongly with a finding of sarcoidosis. This is evidence that she had sarcoidosis, or at least an anomaly of the lung, during service. Also pursuant to the Board's February 2012 Remand, VA afforded the Veteran an examination by a physician. The examiner indicated in the examination report that the Veteran was diagnosed with sarcoidosis in December 1989 and with obstructive sleep apnea in 2008. In a medical history section of that report, she stated as follows: Sarcoid diagnosed in Dec.1988 at Swedish American Hosp. diagnosed by abnormal chest x-ray and on chest CT scan a peripheral right lower lobe nodule with calcium deposition. Veteran was assymptomatic (sic). Bronchoscopy performed Aug.2007 or 2008 in a VA facility in Minneapolis, MN. Biopsy via mediastinoscopy at that time showed benign sarcoidosis. She was seen by a pulmonologist Dr. ["M.C."], who believed no treatment was needed. In 2008, veteran had a biopsy of a lung nodule which diagnosed sarcoid on pathology. In section of the report for addressing whether the Veteran had any of a number of listed pulmonary conditions, the examiner indicated that she had sarcoidosis. She also indicated that the Veteran had persistent symptoms of sarcoidosis described as shortness of breath, chronic hilar adenopathy, and stable lung infiltrates. She detailed findings from a PET scan, a CT scan, biopsy, and bronchoscopy from 2007 or 2008 all indicating that the Veteran has sarcoidosis. The examiner noted that she had reviewed the entire claims file as well as a May 14, 2009 note from "J.H." a physician assistant. The Board observes that the note in the claims file signed by the J.H. is from March 2009 and the content of that note is consistent with the examiner's description of the content of the note she identified as dated May 14, 2009. The date referred to by the examiner is therefore not significant. The examiner provided the following medical opinion: I do not have a rationale from [J.H.], PA-C. (she is not an MD) as to how she arrived at the conclusion that this veteran's sarcoid is due to an event, injury etc. from her years of active service. Since there is no known cause for sarcoidosis, no one can stated (sic): Sarcoidosis stemming from active military duty. I cannot state that either. I opine that it is less likely that not her sarcoidosis is related to findings of the chest x-ray and CT scan when she was in military service. At that time she had a solitary calcified peripheral right lung nodule and no hilar adenopathy. This finding is not likely to be the first manifestation of sarcoid. The initial manifestation is hilar adenopathy which she did not have when in service. The examiner then repeated what the previous examiner had stated as to the descriptions of the condition found in the same textbooks; essentially that the condition affects those genetically predisposed and is related to environmental allergens. She then stated "I opine I cannot state with greater than 50 [percent] assurance that this veteran's sarcoid is related to anything she came in contact with during her active military service." Although the examiner stated in the March 2012 report that the Veteran's sarcoidosis was not present during her active service, the examiner's stated reason for why it was not present during service, was that the Veteran did not have hilar adenopathy during service. In other words, had there been evidence of hilar adenopathy during service, together with the other findings that were present in service, sarcoidosis would clearly be the correct diagnosis at that time. The examiner is incorrect as to her statement that the Veteran had no hilar adenopathy during service. Such was an inaccurate assessment. Now the Board turns to the 1988-89 American Swedish Hospital notes. Swedish American Hospital treatment notes from December 1988 to January 1989 document that the Veteran was admitted for treatment for depression. A January 1989 pulmonary consultation report documents that the Veteran was seen because of a chest x-ray abnormality showing a right lower lobe nodule and right hilar lymphadenopathy. The clinician stated that the Veteran was not aware of any abnormal chest x-rays. In another section of that report it was noted that she had hilar adenopathy on the right side that appeared calcified, as well as a right lower nodular density. Impression included that the nodule and the adenopathy most likely represented healed granulomatous disease either due to previous tuberculosis exposure or histoplasmosis. The physician stated that he could not completely exclude the possibility of sarcoidosis, particularly in view of the slightly indurated skin lesion on the Veteran's right shoulder, but the radiographic features were very atypical for sarcoid. The Swedish American Hospital treatment notes unambiguously document that the Veteran had hilar adenopathy at that time. Taking the Swedish American Hospital treatment notes together with the March 2012 VA examination report and the March 2009 statement of J.H., and resolving all doubt in her favor, the Board concludes that the Veteran had sarcoidosis in 1988-89. Thus, the in-service element of her claim is met as to entitlement to service connection for pulmonary sarcoidosis. The third element, the nexus element, is presumed in this case. Sarcoidosis is a chronic disease listed under 38 C.F.R. § 3.309(a). The manifestations of the disease since 2007, i.e., the findings on diagnostic tests and the decrease in DLCO, have not been attributed to any intercurrent causes. The identity of her disease as sarcoidosis is demonstrated by manifestations that the medical evidence appears to indicate were sufficient to identify the disease during service, as indeed it was then identified, if not to a certainty. This tends to show that 38 C.F.R. § 3.303(b) applies in this case and therefore the nexus element is presumed. It has been considered that the Swedish American Hospital pulmonologist did not definitely diagnose sarcoidosis, and in fact, stated only that the possibility of sarcoidosis could not completely be excluded. This draws into question what exactly is required under section 3.303(b) with respect to the timing of the diagnosis of a chronic disease. The subsection could be read as requiring a clear cut diagnosis of the chronic disease with such diagnosis rendered during the service period. It could also be read as requiring the identification of the disease entity and allow for later evidence to establish that the manifestations present during service were sufficient to identify the specific chronic disease at the time that the veteran was in active military service. Given the discussion regarding cytopathology results to definitely diagnose the condition in the instant case, and VA's equipoise evidentiary standard which applies to all questions going to service connection, the Board finds that the latter reading of the subsection is appropriate. Indeed, as there is some ambiguity in the regulation, such ambiguity must be resolved in favor of the Veteran. See Brown v. Gardner, 513 U.S. 115, 118 (1994) (explaining that interpretive doubt is to be resolved in the veteran's favor); see also Kilpatrick v. Principi, 16 Vet. App. 1, 6 (2002). This is important because if subsection (b) applies, then the nexus element is presumed and an additional nexus opinion is not needed. The Board resolves the ambiguity in the Veteran's favor. Therefore, the Veteran does not have the burden of proving the nexus element; it is presumed. For these reasons, service connection must be granted for pulmonary sarcoidosis. ORDER Service connection for pulmonary sarcoidosis is granted. REMAND A remand is necessary with regard to the issue of entitlement to service connection for sleep apnea because there is insufficient expert evidence in this case to decide the issue and VA has a duty to assist the Veteran in obtaining such evidence under the fact of this case. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA obtains an expert opinion, it must ensure that it is an adequate one). As the Board here grants the Veteran's appeal as to entitlement to service connection for sarcoidosis, the question regarding entitlement to compensation benefits for sleep apnea are not limited to whether sleep apnea had onset during her active service or was caused by the sarcoidosis present during service. Rather, the question now reasonably raised by the record includes whether the Veteran's sleep apnea has been aggravated, i.e., worsened beyond its natural progression, by her service-connected sarcoidosis. The Board notes that whether her sleep apnea was caused or aggravated by her active service, a question to which the March 2012 examiner provided an opinion, is a different question that whether her sleep apnea has been aggravated by her sarcoidosis. This question has not been addressed by the medical evidence of record. The Board is not permitted to provide its own unsubstantiated opinion in this regard. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (explaining that the Board may not rely on its own unsubstantiated medical opinion). Additionally, the expert opinion evidence with regard to whether the Veteran's sleep apnea had onset during active service is not adequate. In the January 2009 VA examination report, the examiner provided an opinion that the sleep apnea was not related to sarcoidosis or the lung nodule found on active duty. She also stated that she had consulted with a pulmonologist who stated that it was an incidental finding. The expert opinion provided in the March 2012 examination report was that sleep apnea was caused by the posterior oropharynx closing down during sleep, a condition she referred to as an "anatomic entity." She stated that sleep apnea is not related to smoking, allergens, sarcoid, or anything that the Veteran would have come in contact with during service and did not stem from a calcified pulmonary nodule. She concluded that the Veteran's sleep apnea was not related to, caused by, or aggravated in any way by her active military service. Those opinions opinion taken together with the March 2012 opinion as to the Veteran's sarcoidosis, tends to show that the examiners have limited their opinions to addressing whether some aspect of the Veteran's active service actually caused the claimed disability or was related to the findings of sarcoidosis during service. This is demonstrated by the examiner's statement in March 2012 that sarcoidosis affects those persons genetically predisposed to it and is related to environmental allergens, and her statement that she could not "state with greater than 50 [percent] assurance that this veteran's sarcoid is related to anything she came in contact with during her active military service." It thus appears to the Board that this examiner understands what was being asked of her to be whether some event or exposure during service caused the sleep apnea. However, given that the Veteran is presumed to have been in sound condition upon entrance into service, if her sleep apnea had onset during service then service connection could be established for sleep apnea regardless of whether an event or exposure during her active service actually caused the sleep apnea or, for that matter, whether it was shown by diagnostic tests probative of sarcoidosis. The opinions provided by the examiners did not address whether the Veteran's sleep apnea had onset during her active service. The opinions are therefore not adequate. As VA has already provided an examination and requested an opinion with regard to the sleep apnea issue, it must ensure that an adequate examination and opinion is provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). If all that was needed was a review of the claims file, the Board would not ask the Veteran to report for another examination. It is unclear from the record when the Veteran first began experiencing symptoms of sleep apnea. Therefore, an examination is appropriate so that the Veteran can provide a complete history of her sleep apnea and the examiner can elicit information as to when the Veteran first experienced symptoms of sleep apnea. Given the complexity of the Veteran's respiratory condition, it is preferable that a physician specializing in respiratory conditions conduct the examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination (preferably with a physician who specializes in respiratory conditions) with regard to her claim of entitlement to service connection for sleep apnea. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must indicate whether he or she has reviewed the claims file. The examiner is asked to accomplish the following: (a) Review the claims file and interview the Veteran as to the history of her sleep apnea symptoms and summarize this history in the examination report. (b) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran' sleep apnea had onset during her active service. (c) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran' sleep apnea was caused by her sarcoidosis - either during her active service or since her active service. (d) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sarcoidosis has permanently worsened her sleep apnea beyond its natural progression. The examiner is cautioned that such worsening occurred if the sarcoidosis has ever resulted in a permanent worsening, not merely if it did so during her active service. Rationale for each of the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Then, readjudicate the issue of entitlement to service connection for sleep apnea, this must include addressing whether the Veteran's service connected sarcoidosis caused or aggravated her sleep apnea. If the benefit sought is not granted in full, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED NEXT PAGE) 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. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs