Citation Nr: 1332776 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 06-16 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to August 30, 2012. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2006 and May 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The May 2006 rating decision denied entitlement to TDIU; the May 2008 rating decision denied service connection for sleep apnea. In March 2011, the Board remanded the issues for further development. No further development with regard to the issue of service connection for sleep apnea is needed. In a rating decision dated in March 2013, the Appeals Management Center (AMC) granted service connection for left lower extremity radiculopathy, rated as 40 percent disabling; right upper extremity radiculopathy rated as 40 percent disabling; and left upper extremity radiculopathy, rated as 30 percent disabling; and increased the rating for the Veteran's service-connected lumbar strain myositis disability from 20 percent to 40 percent; the rating for his service-connected right shoulder impingement syndrome from 20 percent to 40 percent; and the rating for his service-connected cervical spine disability from 20 percent to 30 percent. Each of these rating actions was effective August 30, 2012. In so doing, the combined disability rating for compensation increased to 100 percent effective August 30, 2012; so the issue of entitlement to TDIU effective from August 30, 2012 is moot. The issue of entitlement to TDIU prior to August 30, 2012, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, D.C. VA will notify the appellant if further action is required. FINDING OF FACT The weight of the evidence indicates that the Veteran's sleep apnea had its onset in service. CONCLUSION OF LAW The criteria for a grant of service connection for sleep apnea, effective June 1, 2005, are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) In light of the fully favorable determination in this decision, no discussion of compliance with VA's duty to notify and assist set out under the VCAA is necessary. II. Merits Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303. Disorders diagnosed after discharge may also be service connected if all the evidence, including that pertinent to service, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). 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 Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran seeks service connection for sleep apnea, which he contends began during active duty service. In May 2005 he separated from active duty service, and in June 2005 he filed a claim for service connection. In correspondence dated in July 2005 the Veteran wrote that he had forgotten to include, among the listed disorders in his June 2005 claim for service connection, that he snored; so badly that he choked. By this writing the Board finds that he successfully amended his June 2005 claim to include service connection for sleep apnea. Service treatment records do not show a diagnosis of sleep apnea, but they do document the Veteran as complaining of loss of sleep and excessive daytime sleepiness; and a sleep study done by VA in January 2007 confirms the diagnosis of sleep apnea. The remaining question then is whether the evidence establishes that the Veteran's post-service diagnosed sleep apnea was incurred during service. As stated before, in correspondence dated in July 2005 the Veteran wrote that he snored; so badly that he choked. The Board finds this evidence of symptomatology, which was provided just days after the Veteran's separation from service, to be highly compelling evidence in support of his claim for sleep apnea. See also Veteran's November 2006 statement where he described loud, heavy snoring interrupted with choking sounds or loud snorts followed by periods of silence; shallow breathing; and total cessation of breathing while sleeping. Moreover, the Veteran's account of his symptoms is corroborated by statements from his spouse and daughter, and by persons with whom he formerly served. In correspondence dated in June 2008 the Veteran's daughter wrote that her father had been snoring loudly and making choking noises while sleeping for the past 10 years; and in a separate statement his wife stated that the Veteran seemed to stop breathing while sleeping. She added that this had been going on for many years, and added that the Veteran had complained of excessive day sleepiness to active duty clinicians. In addition to the above, a former active duty roommate wrote that the Veteran "snored in a peculiar l[ou]d way"; making gargling noises like he was choking; and waking up gasping for air choking and pale. And in another statement dated in July 2008, another active duty friend stated that the Veteran snored like a bear, made gargling noises, and seemed to be choking when sleeping. The Board finds these eyewitness statements, which are consistent one with another and with the Veteran's statements, and which relate first hand, personal observations of the Veteran's troubles when sleeping during and since service, to also be highly probative evidence in support of the claim. Owens, 7 Vet. App. 429; see also Evans, 12 Vet. App. 22, 30 (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). At this point the weight of the evidence decidedly favors the Veteran's claim. As for the evidence against the claim, according to a VA examiner, the Veteran's sleep apnea is not caused by or a result of active military service because there was no sleep apnea evaluation during service "or complains associated to sleep apnea while on service." The Board finds this assertion to be inconsistent with the actual record. Indeed, the opposite is the case, since service treatment records show that the Veteran did, indeed, complain to military clinicians of loss of sleep and excessive daytime sleepiness during service. Given this, it is reasonable to infer this opinion actually provides support for the claim, since if it was the absence of these symptoms that provided the basis for concluding there were no link with service, their presence would imply the opposite; i.e., that it was incurred in service. Moreover, the Veteran, whose healthcare was entrusted to military providers during service, can hardly be penalized for not having undergone a sleep study during service; particularly since none was ordered. The competent, credible, and persuasive evidence consequently supports the Veteran's claim. See Buchanan v. Nicholson, 452 F.3d at 1335; see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (holding that it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). As such, and as the claim for service connection was filed within days after the Veteran's separation from active duty service, service connection for sleep apnea is warranted effective June 1, 2005, the first day after the Veteran's separation from active duty service. See 38 C.F.R. § 3.400(b)(2) (providing that the effective date of a grant of service connection shall be the date following separation from active service . . . if the claim is received within 1 year after separation from service). ORDER Service connection for sleep apnea is granted, effective June 1, 2005. REMAND In view of the just awarded grant of service connection for sleep apnea, the Veteran's pre- August 2012 service-connected disability picture has changed. The claims file should therefore be sent for an opinion as to whether, based on this new service-connected picture, these disabilities, singularly or in combination, were of sufficient severity to cause unemployability. 38 C.F.R. § 3.327. Before the examination is done, all VA treatment records dated after December 2012 must be associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate all of the Veteran's VA medical records dated after December 2012 with the claims file. Any additional pertinent private treatment records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran. 2. After associating all outstanding records with the claims file, send the claims file to a VA examiner for review and an opinion on the issue of entitlement to TDIU. After review of the claims file, including in-service Medical Board records, post-service medical records, Social Security records, and the lay evidence of record, and taking into account this Veteran's education, training, and work history (but not his age or the effect of any nonservice-connected disabilities), the examiner should opine as to whether it is at least as likely as not that the Veteran's service-connected disabilities (identified below) were, singularly or in combination, of sufficient severity to cause unemployability prior to August 30, 2012. Prior to August 2012, the Veteran was service-connected, since June 1, 2005, for the following: right shoulder impingement syndrome; lumbar strain myositis; dysthymic disorder; tension headaches with migraine features; status post cervical fusion with residual strain and myositis; left patellofemoral dysfunction; right patellofemoral dysfunction; internal hemorrhoids; GERD; sleep apnea; and in September 2006, the disability picture expanded to include erectile dysfunction. In formulating the requested opinion, the examiner should note that the Veteran was separated from active duty service in May 2005 on recommendation of a Medical Board, due to neck pain, low back pain, and an acquired psychiatric disorder, diagnosed as major depressive disorder. See July through November, 2004, Medical Board records. See also Veteran's DD-214 - separated by reason of permanent disability. Additionally, the examiner should consider that in a decision dated in January 2008, the Veteran was determined, by the Social Security Administration, to have been unable to secure or follow substantially gainful employment since August 1, 2003 [while he was still on active duty]. See January 2008 Social Security Administration disability decision. The Social Security Administration specifically found that the entries posted to the Veteran's earnings records after August 1, 2003, did not constitute substantial gainful activity because the Veteran was on sick/convalesce leave. A complete rationale for all opinions should be set forth in the report provided. 3. After completion of all of the above and any other development deemed necessary, readjudicate the claim for TDIU. If this benefit remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond before returning the case to the Board. 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). 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 E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs