Citation Nr: 1311511 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-30 055 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for right upper extremity peripheral paresthesias, to include as due to service-connected myasthenia gravis. 2. Entitlement to service connection for seborrheic keratoses, to include as due to service-connected myasthenia gravis. 3. Entitlement to service connection for central and obstructive sleep apnea, to include as due to service-connected myasthenia gravis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to January 1970, from August 1979 to January 1980, and from November 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The claims file is in the jurisdiction of the RO in Lincoln, Nebraska. The issues of entitlement to service connection for right arm paresthesias and entitlement to service connection for seborrheic keratoses are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and probative evidence of record is in equipoise as to whether the Veteran's sleep apnea was caused by a service-connected disability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue involving the Veteran's claim for entitlement to service connection for sleep apnea. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting entitlement to service connection for sleep apnea. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The benefit of the doubt rule is inapplicable when the preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran contends that his sleep apnea is proximately related to his service-connected myasthenia gravis. He has submitted numerous medical treatises that he believes support a finding that his myasthenia gravis caused his sleep apnea. The Veteran's available service treatment records are negative for any complaints of or treatment for sleep apnea during service. An April 1995 record reflects that the Veteran complained of shortness of breath with waking three to four times per night, gasping for air, during the prior two months. The diagnosis was shortness of breath. In April 2008, the Veteran underwent a sleep study. He reported a history of excessive daytime sleepiness. Past medical history was reported as high cholesterol, a history of polio, and myasthenia gravis. The sleep study revealed obstructive sleep apnea and central sleep apnea. In a September 2009 statement, the Veteran's wife reported that she married the Veteran in 1988, and that when he returned from Operation Desert Storm in May 1991, he snored heavily and stopped breathing while sleeping. She indicated that he would gasp for breath and breathe heavily for a while until he returned to normal breathing. She also noted that he did not have those symptoms prior to serving in the Gulf War. In a September 2009 letter, E. Seglie, M.D., who served with the Veteran, stated that the Veteran complained of fatigue and shortness of breath after returning from Operation Desert Storm in its demobilization phase in 1991. Dr. Seglie opined that the Veteran's sleep apnea is directly related to his myasthenia gravis. In support of his opinion, Dr. Seglie noted that the available research shows that over 60 percent of myasthenia gravis patients are also diagnosed with central and obstructive sleep apnea, and there is a strong relationship between the two diseases. Dr. Seglie stated that, due to the relative rarity of a patient being diagnosed with both obstructive and central sleep apnea, it is more likely than not that the Veteran's sleep apnea stems from his myasthenia gravis. Additionally, Dr. Seglie noted that the Veteran's disease process began prior to or near his demobilization from Desert Storm in 1991. During a September 2009 hearing before the RO, and in an August 2012 hearing before the Board, the Veteran testified that he had shortness of breath and began snoring loudly during service. He indicated that he was diagnosed with sleep apnea in 1995. In January 2010, the Veteran underwent a VA respiratory examination. Physical examination revealed no evidence of congestive heart failure or pulmonary hypertension. S1 and S2 were present and cardiac rhythm was regular. There was no evidence of abnormal breath sounds on pulmonary examination. The diagnoses were obstructive sleep apnea and central sleep apnea. After reviewing the Veteran's claims file, the VA examiner stated that, although the vast majority of cases concerning sleep apnea do not have myasthenia as an etiology, with generalized myasthenic complaints, these can easily lead to weakness of the oropharynx, which may play into sleep apnea. The physician concluded that the Veteran should be referred to a neurologist to determine the effect of his myasthenia gravis on his sleep apnea. In February 2010, the Veteran underwent a VA neurological examination. The VA examiner does not appear to have elicited a history from the Veteran. Although the examiner indicated that the Veteran's entire chart was reviewed, the examiner did not address any of the pertinent records, including Dr. Seglie's opinion or the medical treatise information provided by the Veteran. The VA examiner noted that, although the literature supports some respiratory problems with systemic myasthenia gravis, it is not as well documented with ocular. However, the examiner did not provide an opinion as to whether the Veteran's sleep apnea was related to service, or whether it was caused or aggravated by his myasthenia gravis. In an April 2010 opinion, the neurologist who provided the February 2010 examination concluded that the Veteran's pulmonary difficulties with sleep apnea and shortness of breath do not appear to be related to his myasthenia gravis, noting that the medical literature relates respiratory difficulties with systemic myasthenia, and not ocular myasthenia. In support of his claim, the Veteran has submitted numerous medical treatise articles linking myasthenia gravis with sleep apnea. After thorough consideration of the evidence of record, the Board concludes that service connection for sleep apnea is warranted. There are current diagnoses of obstructive sleep apnea and central sleep apnea. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the medical evidence of record is in equipoise as to whether the Veteran's current sleep apnea is related to his service-connected myasthenia gravis. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. §§ 3.303; see Allen, 7 Vet. App. 439 (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). Specifically, although the February 2010 VA examiner found that the Veteran's sleep apnea was not related to his myasthenia gravis, in September 2009, Dr. Seglie concluded that the evidence did support a relationship between the Veteran's sleep apnea and his service-connected myasthenia gravis. Dr. Seglie also indicated that the relative rarity of a patient being diagnosed with both obstructive and central sleep apnea is further evidence that his sleep apnea stems from myasthenia gravis. Last, Dr. Seglie noted that the Veteran had shortness of breath and snoring during service, and that his sleep apnea disease process began prior to his demobilization and separation from active duty in 1991, thus linking the Veteran's sleep apnea directly to service. Although the evidence shows that the February 2010 VA examiner reviewed the Veteran's "chart" while the September 2009 private medical treatment letter does not note such a review, the February 2010 VA examiner's opinion does not appear to be based upon or supported by any evidence in the claims file that was not reviewed by the September 2009 private physician. Thus, the VA examiner's review of the claims file does not make the February 2010 VA examiner's opinion more probative than the September 2009 private physician's opinion. In addition, both physicians provided supporting rationale for their opinions. Accordingly, neither the opinion provided by the February 2010 VA examiner nor the opinion provided by the September 2009 private physician is more probative. Thus, the Board concludes that the evidence is at least in equipoise with regard to the issue of whether the Veteran's sleep apnea is related to his service-connected myasthenia gravis; therefore, with application of the benefit of the doubt doctrine, service connection for sleep apnea is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for sleep apnea is granted. REMAND I. Right Arm Paresthesias The Veteran underwent a VA examination in February 2010 which addressed the etiology of his claimed right arm paresthesias. The examiner stated that he had a great deal of difficulty determining whether the Veteran's right upper extremity was related to his service-connected myasthenia gravis, but concluded that it was less likely related to his myasthenia gravis based on his good reflexes, good strength, and the fact that he had surgery. However, as noted by the Veteran and as indicated in the Veteran's service treatment records, the Veteran did not have surgery on his right arm or shoulder - he had surgery on his left shoulder. Thus, the VA examiner's opinion was based on inaccurate facts and is therefore inadequate upon which to base an appellate decision. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one). The VA examiner who provided the February 2010 VA examination prepared an addendum dated in April 2010. However, the addendum notes the examiner's opinion that the Veteran's left arm is not related to his active duty service. As the Veteran is claiming service connection for a right arm disorder, and not a left arm disorder, the April 2010 opinion is also inadequate. Id. For the foregoing reasons, the Veteran must be provided with a new VA examination addressing the etiology of his right arm paresthesias. II. Seborrheic Keratoses With respect to the Veteran's claim for entitlement to service connection for seborrheic keratoses, the RO must obtain a VA examination addressing the etiology of the Veteran's seborrheic keratoses. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran contends that service connection for seborrheic keratoses is warranted. Specifically, he alleges that his seborrheic keratoses first manifested during service and has continued to manifest regularly since service discharge. Although the Veteran's service treatment records do not show diagnoses of or treatment for a skin disorder during service, in an April 2008 letter, E. Seglie, M.D., a physician who served with the Veteran, stated that the Veteran developed several lesions during service in Kuwait and Iraq, and that his lesions were surgically removed while still in the desert. Thus, it is certainly possible that there would not be documentation of the removal of the Veteran's lesions in his medical file. Additionally, during an August 2009 hearing before the RO and in an August 2012 hearing before the Board, the Veteran testified that he has had these lesions removed approximately every six months since they first developed in 1991. Accordingly, the Board finds that the low threshold described in McLendon has been reached, and a medical opinion addressing the etiology of the Veteran's seborrheic keratoses is required in this case. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Thus, a VA examination addressing the etiology of the Veteran's seborrheic keratoses must be provided. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his right arm paresthesia. The claims file and a copy of this Remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the service and postservice medical records, the examiner should state whether the Veteran's current right arm paresthesia is at least as likely as not (50 percent probability or greater) related to his military service or to his service-connected myasthenia gravis. A complete rationale for all opinions must be provided, citing to current clinical findings and/or claims file documents as appropriate. 2. Schedule the Veteran for a VA examination to determine the etiology of his seborrheic keratoses. The claims file and a copy of this Remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the service and postservice medical records, including the April 2008 letter from Dr. Seglie stating that the Veteran developed lesions during service, the examiner should state whether the Veteran's current seborrheic keratoses is at least as likely as not (50 percent probability or greater) related to his military service or to his service-connected myasthenia gravis. A complete rationale for all opinions must be provided, citing to current clinical findings and/or claims file documents as appropriate. 3. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claims. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. 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. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs