Citation Nr: 1332476 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-36 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an evaluation in excess of 10 percent for lumbar spine disability. 3. Entitlement to an evaluation in excess of 10 percent for right knee disability. 4. Entitlement to an evaluation in excess of 10 percent for left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from December 9, 1982, to July 31, 1998; he also had 7 years, 8 months, and 2 days of active service prior to December 9, 1982, including a period from April 1975 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2007 and December 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge in June 2013; a transcript of that hearing is associated with the claims file. (The increased rating issues are addressed in the remand that follows the decision below.) FINDING OF FACT The Veteran has obstructive sleep apnea that likely began during his active duty military service. CONCLUSION OF LAW The Veteran likely has obstructive sleep apnea that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). On appeal, the Veteran has averred that his sleep apnea began in military service. Specifically, at his June 2013 hearing, the Veteran stated that during military service he reported having trouble sleeping and went on sick call, but that he was always told it was sinus issues and was given sinus medication. He further stated that he was never given a sleep study during military service and that he was not aware of sleep apnea as a condition until 2009. He stated that during military service he suffered from "loud snoring, restless sleep, headaches, snorting, gasping and choking. [He had] dry mouth upon awakening, short temper and irritability, frequent urination, heartburn, and sleep during the day and while driving [he felt] sleepy." The Veteran has stated that those symptoms have persisted since military service. The Veteran submitted a September 2009 private sleep study that demonstrates that he was diagnosed with severe obstructive sleep apnea. The Veteran's service treatment records confirm that he did not undergo a sleep study during military service; nor that he was treated for any sleeping problems during service. In Reports of Medical History from December 1974, December 1979, March 1986, October 1988, and July 1993, the Veteran did not report any trouble sleeping; however, in Reports of Medical History from November 1982, October 1994, and on separation in April 1998, he reported frequent trouble sleeping. A doctor noted on the October 1994 report that the Veteran had occasional problems sleeping only when stressed. It was not considered disabling and relaxation techniques were reviewed. The Veteran submitted several lay statements from his daughter, ex-wife and former shipmate/bunkmate during military service, which indicate that the Veteran had a loud snore and breathing issues/pauses in his breathing during his period of military service; they also reference instances of waking up after a big snort and gasping for air, having a short temper, morning headaches, restless sleep, and daytime sleepiness with a need to nap during the day. The Veteran submitted a November 2010 letter from his VA primary care physician, Dr. C.P., in which she noted that the Veteran was not diagnosed with sleep apnea until he was discharged from service. She noted that she reviewed the shipmate's letter and the observations noted during service. She noted that those observations were consistent with sleep apnea and that "it is as likely as not that he had [obstructive sleep apnea] as far back as the 1980s. It is not uncommon for obstructive sleep apnea to have a significant delay in diagnosis." The Veteran underwent a VA examination in December 2010. It was noted that the Veteran was diagnosed in September 2009 with obstructive sleep apnea on the basis of a sleep study. The examiner noted that the Veteran was concomitantly diagnosed with hypertension and that he was currently taking antihypertensive medications. The Veteran currently used a CPAP machine during sleep. He reported that he has always been a loud snorer. The examiner noted an approximately 20-pound increase in weight during military service as per his listed weights during his physical examinations, as well as his normal blood pressure readings during service. The examiner additionally noted the former shipmate's statements. The examiner also noted the intermittent reporting in service of trouble sleeping, and noted that the Veteran was not able to explain these inconsistencies in reporting during the examination. The Veteran was diagnosed with obstructive sleep apnea. After review of the claims file-including the service medical records, statements from friends, family and his former shipmate, as well as the VA treatment records in the claims file-the examiner opined that "the Veteran's reported trouble sleeping during military service was not caused by sleep apnea." The examiner noted that at least one doctor noted that his sleeping issues during service were stress-related. He also noted that the Veteran denied having trouble falling asleep during the day in the examination interview; he also stated that he was never reprimanded for arriving late, falling asleep during duty, or had any trouble completing his duties in a timely manner. He also denied any issues during service related to somnolence or fatigue. The examiner concluded that it would be "unusual" for a supervising officer to not note the symptoms of sleep apnea during a 20-year military career, if such existed. He additionally noted the Veteran's inconsistency in reporting trouble sleeping during military service. The examiner noted that it was highly unlikely that sleep apnea would "come and go . . . be intermittent, or wax and wane, yet much more likely that sleep disturbance from stress or other issues would be noticed intermittently." The examiner noted that absent "treatment, sleep apnea is a consistently progressive disorder, resulting in the development of hypertension and other manifestations such as falling asleep at work or job performance issues. It would be unlikely that the Veteran had hypertension during that time period, nor have any trouble with work due to secondary symptoms." Instead, the examiner opined that it appeared that the Veteran's sleep apnea developed within the last few years. Such a conclusion was supported by the Veteran's 13-pound increase in weight since discharge from service and the development of hypertension simultaneously with his diagnosis of sleep apnea. Such evidence was "highly suggestive of a more recent onset of apnea, which coincides with his onset of hypertension and his recent weight gain, and helps to make sense, concluding that his sleep symptoms during service were due to stress or some other cause than sleep apnea." He again concluded that the Veteran's sleep apnea was not the cause of his trouble sleeping during military service. Based on the forgoing evidence, the Board finds that service connection for obstructive sleep apnea is warranted. First, the Board finds that the Veteran's lay evidence, and particularly the statements of his shipmate, daughter and ex-wife, to be competent and credible, especially with respect to the Veteran's symptomatology during military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). With regards to the VA examiner's opinion, the Board initially notes that he stated he reviewed the entire claims file, but fails to note or discuss the November 2010 letter from Dr. C.P. Furthermore, other than to note the existence of the lay statements from the Veteran's friends, family and former shipmate, the VA examiner does not engage this evidence at all in his medical opinion. Instead, the examiner noted that the Veteran did not have job performance issues and that no supervising officer noted any daytime sleepiness or "other sleep apnea symptoms" that would, apparently, be readily observable during the normal course of a duty shift. The Board is not clear as to how a supervisor would observe symptoms such as loud snoring, snorting, waking up gasping for air or choking-all symptoms consistent with sleep apnea, as noted by Dr. C.P. The VA examiner's reliance on the lack of a diminished workplace performance or noticeable sleeping while on duty does not contemplate the existence of other symptoms of the disorder which may have not been present during working hours. The Board finds that this failure to address the competent lay evidence, corroborated by those most intimately and acutely able to observe the Veteran's sleep patterns, undermines the VA examiner's opinion. Finally, the Board finds the VA examiner's reliance on the fact that the Veteran did not have hypertension in service as a rationale to be particularly interesting, especially considering his statement that sleep apnea is a "progressive disorder." If it is, in fact, a progressive disorder, would the post-service development of hypertension not, in fact, fit with the classification of a "progressive disorder" that the VA examiner notes sleep apnea is? Again, the Board notes that the VA examiner's failure to engage the lay evidence in this case undermines the opinion's rationale, further demonstrated in this case by the VA examiner's own classification of the disorder as progressive, but without discussion as to how such a progression of symptomatology observed during service had not progressed to the point of a diagnosable condition after service. Dr. C.P. does not discuss the concomitant development of hypertension with the diagnosis of sleep apnea raised by the VA examiner. The Board does not find the absence of a discussion of that point to be fatal in this case, although the lack of discussion diminishes the probative value of that opinion a bit. Nevertheless, the Board finds that overall Dr. C.P.'s opinion engaged the relevant facts in this case, especially the lay evidence, noting that such observations during service were consistent with obstructive sleep apnea. After weighing the probative value of the respective opinions in this case, the Board finds that there is a relative equipoise with respect to whether sleep apnea began during military service. See 38 C.F.R. §§ 3.102, 3.303(d). In so finding, the Board has applied the benefit-of-the-doubt doctrine in this case and grants service connection. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for obstructive sleep apnea is granted. REMAND With respect to the Veteran's lumbar spine and bilateral knee disabilities, the Veteran submitted a June 2013 letter from his VA primary care physician, which indicated that the Veteran was last seen in Rheumatology in February 2013. A review of the claims file reveals that VA treatment records since May 2011 are not associated with the claims file or the Virtual VA efolder. In light of this fact, there appears to be outstanding VA treatment records that are potentially relevant to the claim that are not currently associated with the claims file. Accordingly, in order for VA to satisfy its duty to assist, a remand is necessary to obtain these potentially relevant VA treatment records. The Veteran should additionally be asked for information regarding any private treatment he may be receiving for those disabilities as well, and any identified records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran's last VA examination of his lumbar spine and knee disabilities was performed in December 2011. In light of this need to remand and the length of time that has passed since his last examination, the Board finds that new VA examinations should be afforded to the Veteran on remand in order to facilitate adjudication of the Veteran's claims with regard to the current severity of his lumbar spine and knee disabilities. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the San Diego VA Medical Center, or any other VA medical facility that may have treated the Veteran, since May 2011 and associate those documents with the claims file. (The Veteran should be asked to identify all locations where VA treatment or evaluation has been sought.) 2. Ask the Veteran to identify any private treatment that he may have had for his lumbar spine and bilateral knee disabilities, report of which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for VA orthopedic and neurologic examinations in order to determine the current severity of his lumbar spine disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The VA examiner is directed to conduct range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examiner is also directed to specifically comment on the following: (a) Whether there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. (b) Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's lumbar spine. (c) Whether the Veteran has intervertebral disc syndrome of the lumbar spine, and if so, identify the number of incapacitating episodes involving physician-prescribed bed rest, if any, within a 12-month period. (d) The examiner must also identify any associated neurological abnormalities associated with the service-connected lumbar spine disorder, to include any associated bladder or bowel impairment, and particularly the presence of any radiculopathy. The nerves affected or seemingly affected should be identified and impairment of each described as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves. The examiner should also state whether the Veteran's lumbar spine disability and any associated neurological disabilities preclude him from obtaining and maintaining substantially gainful employment. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for a VA examination to determine the current severity of his knee disabilities. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file, the VA examiner should conduct range-of-motion testing-particularly as to the Veteran's knee extension, flexion, and any ankylosis, or arthritis thereof-and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. This should be done for each knee and for both flexion and extension. The examiner must also indicate the presence or absence of any lateral instability and/or recurrent subluxation in the Veteran's knees. If instability is present, the examiner must specifically state whether such instability is slight, moderate, or severe. If instability is not found, the examiner should indicate that. The examiner should also discuss any lay evidence of symptomatology provided by the Veteran. The examiner should also indicate the extent that knee disability affects employability, namely whether such disability precludes him from obtaining or maintaining substantially gainful employment. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Following any additional indicated development, the agency of original jurisdiction should review the claims file and readjudicate the Veteran's rating claims for his lumbar spine and knee disabilities. If a benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs