Citation Nr: 1538659 Decision Date: 09/10/15 Archive Date: 09/18/15 DOCKET NO. 11-02 878 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine status post fusion. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from March 1971 to January 1993. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2010 rating decision in which the RO denied service connection for, inter alia, degenerative disc disease of the lumbar spine status post fusion, and obstructive sleep apnea status post tonsillectomy and uvulopalatal pharyngoplasty. The Veteran filed a notice of disagreement with the RO's decision in August 2010. The RO issued a statement of the case (SOC) in November 2010, and the Veteran filed a substantive appeal (VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2011. Subsequent SOCs were issued in January 2012 and January 2013. In January 2012, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. A transcript of that hearing has been associated with the claims file. As for the matter of representation, the Veteran was initially represented in this appeal by The American Legion. However, in September 2014, the Veteran executed a power of attorney in favor of Disabled American Veterans, and in September 2015, that organization submitted additional argument on the Veteran's behalf. The Board recognizes the change in representation. The Board notes that, in addition to the paper claims file, the Veteran has paperless, electronic Virtual VA and Veterans Benefits Management System (VBMS) files. The VBMS file contains an August 2015 Appellant Brief. The Virtual VA file includes documents that are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board's decision on the claim for service connection for obstructive sleep apnea status post tonsillectomy and uvulopalatal pharyngoplasty is set forth below. The claim for service connection for degenerative disc disease of the lumbar spine status post fusion is addressed in the remand following the order; this matter is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Credible statements from the Veteran, his family members and a fellow service member indicate that the Veteran has experienced continuous symptoms associated with sleep problems during and since service, and the competent medical opinions on the question of whether the Veteran's current sleep apnea is etiologically related to military service are, at least, in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea are met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Given the favorable disposition of the claim for service connection for sleep apnea, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. The Veteran contends that he is entitled to service connection for sleep apnea, as his symptoms began during service and have continued since that time. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be granted for any disease diagnosed after discharge from 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). Section 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" when evaluating a claim for disability benefits. Davidson, 581 F.3d at 1316. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for sleep apnea is warranted. In the present case, there is no dispute that the Veteran has a current diagnosis of sleep apnea. The evidentiary record contains a July 1998 medical report indicating that obstructive sleep apnea was diagnosed. Thus, the requirement of a current disability has been met. In a January 2010 statement, the Veteran described being on deployment in service with his squadron and staying in barracks or tents with other service members, who would complain about his loud snoring. He indicated that, at home, he and his wife had to sleep in separate bedrooms because of his snoring. As the Veteran's career wound down, he stated, he found himself constantly tired and feeling run down. After being diagnosed with sleep apnea, he attempted to use a CPAP machine, but he could not wear it and instead underwent corrective surgery. Following surgery, the Veteran continued to experience the former symptoms. In a January 2010 statement, the Veteran's wife described his snoring, which she indicated began before he retired from the Marine Corps. She indicated that the couple was forced to sleep apart, and that the condition had an adverse effect on their marriage. She described periods where the Veteran, while sleeping, gasped for breath or stopped breathing altogether. In a statement received by VA in September 2010, the Veteran's daughter described her experience with her father's constant snoring and his being tired all of the time. She indicated that her father had snored for as long as she could remember, and that her mother had to sleep apart from him because of it. In a September 2010 statement, the Veteran described falling asleep at his desk, while in the military, and being told to take vitamins for energy, in order to stay awake. He recalled discussing the issue with a flight surgeon, but no diagnosis was made. The Veteran further explained that the sleep study indicated that he stopped breathing multiple times at night. The letter indicates that the Veteran felt he had been not been properly diagnosed, as sleep apnea was not a commonly-known medical condition when his sleeping problems started in the 1980s. Also in September 2010, the Veteran's son-in-law submitted a statement in support of the claim. He indicated that, on numerous occasions while the Veteran was still in service, he visited the Veteran's residence and witnessed the loud snoring. Another of the Veteran's adult daughters submitted a statement dated September 2010, in which she described her father's severe snoring. She described how her father would complain about being run down and would have to nap regularly. Even during naps, she explained, he would snore very loudly. During the January 2012 DRO hearing, the Veteran testified that, while in service, he complained to a flight surgeon and squadron Corpsman about always feeling tired. He indicated that, towards the end of his career, he felt tired and lethargic on a regular basis, with no energy. He described falling asleep while sitting in his chair at work. In a February 2012 statement, the Veteran detailed his belief that he had been misdiagnosed when on active duty, and that he was experiencing symptoms of sleep apnea at that time. He described being tired and falling asleep while at work. He indicated that, had he known that sleep apnea was a condition, he would have pursued medical treatment for it when in service. In a December 2012, the Veteran submitted a letter from R.W., the lieutenant colonel who commanded the Veteran's squadron from 1989 to 1991. In that letter, R.W. indicated that the Veteran frequently complained about chronic fatigue and an inability to get a good night's sleep. R.W. indicated that, in response, he referred the Veteran to the flight surgeon, who recommended rest and vitamins as treatment. As for the in-service injury or disease requirement, the Board notes the Veteran's service treatment records do not document any complaint, finding or diagnosis relative to sleep apnea. However, the Veteran, his family, and his colonel are all competent to attest to symptoms of snoring and irregular breathing, occurring for many years during service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a layperson is competent to observe breathing difficulty); 38 C.F.R. § 3.159(a)(2). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Id. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Certainly, the Veteran is competent to report his own symptoms (which he perceives as associated with his sleep apnea), and his wife, daughters, son-in-law and fellow service member are competent to report facts of which they have first-hand knowledge, or which they observed (here, certain symptoms that they observed the Veteran experiencing while in service). See, e.g., Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board also finds that the histories provided by the Veteran, his family and his fellow service member are credible, as they are generally consistent with the other evidence in the record and are not contradicted by any inconsistencies which materially affect the credibility of their statements. The Board notes that the Veteran has asserted that symptoms attributable to his sleep apnea began in the 1980s. While there is no objective record documenting sleep problems until 1998, the statements submitted by the Veteran, his wife, his daughters, his son-in-law and his colonel document that his symptoms began during service. Further, the Veteran's assertions that he continued to experience sleep apnea symptoms from service up to his initial sleep apnea diagnosis is supported by the statements of his wife and son-in-law, statements which are not contradicted by, or inconsistent with, any other evidence of record. In short, the Board finds no reason to question the veracity of the lay assertions made by the Veteran, his family and his fellow service member as to the onset and continuity of symptoms that may be associated with the Veteran's later-diagnosed sleep apnea, and such assertions are, thus, deemed credible. The remaining question is whether there is a nexus between such in-service symptoms and the Veteran's sleep apnea. In a January 2010 letter, the Veteran's doctor explained that the Veteran's sleep apnea had been present for a "long period of time." He indicated that he had reviewed the Veteran's medical records and found evidence of "generalized complaints" prior to the Veteran's 1998 sleep study, and such complaints would indicate an undiagnosed and untreated sleep apnea condition. The doctor indicated that sleep apnea of the level shown in the sleep study would not develop over a short period of time. He concluded that the Veteran was most likely experiencing sleep apnea while on active duty. In January 2010, a VA medical professional reviewed the record, examined the Veteran, and opined that the Veteran's obstructive sleep apnea was less likely than not incurred in service. As stated rationale for his opinion, the VA examiner noted that there was a single incident of a disturbed sleep pattern in the Veteran's service medical records, and no mention of sleep difficulties or sleep apnea in his July 1992 separation examination. He noted the Veteran's 1993 release date and the May 1998 sleep apnea diagnosis. The doctor described sleep apnea as a gradual onset condition, but that it would be pure speculation to suggest that it started five years prior to his diagnosis. Thus, the current record includes conflicting opinions on the question of whether the Veteran's current diagnosis of sleep apnea is medically related to his military service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet .App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). However, a medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds that the private and VA examiners are competent professionals who have each evaluated the Veteran, provided an opinion within his area of expertise, and rationale for the opinion provided. See Nieves-Rodriguez, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Each examiner provided an opinion based upon essentially the same medical history and assertions, to include an interview with the Veteran. Thus, the record clearly contains both a competent opinion in support of, and a competent opinion against, the Veteran's claim for service connection. While the private doctor did not specify what records he reviewed that provided the basis for his conclusion, and the VA examiner did not explicitly address the competent and credible lay assertions that the Veteran's sleep difficulties began during service and have continued to the present, given the other evidence of record, the Board finds that neither error or omission provides sufficient basis for the Board to reject either opinion on the basis of a lack of credibility or probative value (see, e.g., Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997)). Instead, the Board finds that overall, these competent but contrary opinions directly address the etiology question and are entitled to, essentially, equal probative weight. As such, the Board finds that the evidence for and against the claim is relatively evenly balanced, or, in other words, in relative equipoise. Under these circumstances, the benefit of the doubt in resolving the issue shall be given to the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Given the totality of the relevant evidence in this case-to particularly include the multiple lay statements supporting the Veteran's contentions as to his in-service symptoms and the medical evidence on the question of a nexus between the Veteran's sleep apnea and service-and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for sleep apnea are met. ORDER Service connection for sleep apnea is granted. REMAND The Board's review of the claims file reveals that further AOJ action on the claim for service connection for a back disorder is warranted. The Veteran contends that his degenerative disc disease of the lumbar spine status post fusion (hereinafter, "lower back disability") is the result of his military service. In a September 2009 statement, the Veteran reported that he did not seek treatment for his back while in service and that it was only after he retired from the Marine Corps that he sought medical attention for a back disability that he feels had its onset in service. In June 2010, the Veteran underwent a VA spine examination. In the associated July 2010 examination report, it was noted that the Veteran was seen one time while in service, in November 1977, for a complaint of lower back pain. The VA examiner noted that the Veteran's separation physical was negative for mention of any back pain. He noted that the Veteran first sought treatment for lower back pain in 2002. The examiner concluded that the Veteran's lower back disability was unrelated to service. As rationale, he indicated that the Veteran had a single in-service complaint of back pain, some 16 years prior to separation. The examiner noted that, although the Veteran indicated at the examination that his back pain started in 1991 or 1992, such a claim was contradicted by the medical record, which clearly showed no back pain at separation and treatment for the condition that began some ten years later. During the January 2012 DRO hearing, the Veteran indicated that he hurt his back carrying a heavy rucksack during cold weather training. In December 2012, the Veteran submitted the letter from R.W., the lieutenant colonel who commanded the Veteran's squadron from 1989 to 1991. R.W. described an incident during a February 1990 cold weather training in which he witnessed the Veteran strain his back after marching with a heavy pack. R.W. described how he summoned a flight surgeon to aid the Veteran for the strain, and that the flight surgeon gave the Veteran muscle relaxers as treatment. He further indicated that such treatment would not be considered an official medical visit and, therefore, would not result in a medical record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essentially for a proper appellate decision"). Here, while the July 2010 examiner's opinion was based on review of pertinent medical records and service treatment records, the Board notes that the examiner did not have all relevant evidence before him in order to render his opinion. In this regard, the Board notes that a VA examination must consider lay evidence of in-service incurrence or continuity of symptoms since service. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Based on the foregoing, the Board finds that the opinion provided by the July 2010 VA examiner is inadequate, and that further medical opinion addressing the medical nexus, if any, between any current back disability and service is warranted. The AOJ should, if possible, obtain an addendum opinion from the individual who conducted the previous examination. If the prior examiner is not available, the AOJ should obtain an opinion, based on a review of the claims file, from another appropriate physician. The AOJ should only arrange for the Veteran to undergo a further examination if deemed necessary in the judgment of a competent medical professional-i.e., the physician designated to provide the addendum opinion. Prior to arranging to obtain further medical opinion on this claim, to ensure that all due process requirements are met, and the record is complete, the AOJ should obtain and associate with the claims file any outstanding, pertinent records, to include VA treatment records. It appears from the record that the Veteran is primarily treated by non-VA physicians; to that end, the Veteran's file contains private medical records dated through January 2010 and more recent records may exist. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to any additional evidence pertinent to the appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses from each contacted entity are associated with the claims file, arrange to obtain an addendum opinion from the July 2010 VA examiner. If the examiner who provided the July 2010 opinion is no longer employed by VA or is otherwise unavailable, that fact should be documented in the claims file, and the opinion should be obtained by another appropriate physician, based on claims file review (if possible). The need for another examination is left to the discretion of the medical professional designated to provide the addendum opinion. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/report must reflect full consideration of the Veteran's documented medical history and assertions. Following a review of the claims file, for each diagnosed back disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during or is otherwise medically related to an in-service injury or disease-to include an alleged injury resulting from carrying a heavy rucksack during cold weather training in February 1990. In providing each requested opinion, the examiner must consider and address all medical evidence and lay assertions-to include the Veteran's assertions as to the occurrence of in-service injury, and his assertions as to the nature, onset and continuity of back symptoms in and since service (which he is competent to assert). The examiner must provide complete, clearly-stated rationale for the conclusions reached, whether favorable or unfavorable, citing to specific evidence of record, as warranted. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the above actions, and any other notification or development action deemed warranted, adjudicate the claim for service connection for a back disorder in light of all pertinent evidence (to include all that added to the claims file since the last adjudication) and legal authority. 6. If the claim remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs