Citation Nr: 1618633 Decision Date: 05/10/16 Archive Date: 05/19/16 DOCKET NO. 11-09 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for a bilateral foot disorder, to include plantar fasciitis and pes planus. 3. Entitlement to service connection for a back disorder. 4. Entitlement to an effective date prior to January 25, 2013, for the award of service connection for post-operative right shoulder condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran served in the United States Army Reserve with active duty for training (ACDUTRA) from March 1985 to August 1985, and active duty from March 2003 to June 2003 and from April 2006 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Additionally, in December 2013 rating decision, the RO awarded service connection for post-operative right shoulder condition, effective January 25, 2013. In a January 2014 statement, the Veteran essentially disagreed with the assigned effective date as he argued for a temporary total rating based on surgery that was performed in November 2012. Thereafter, in a June 2014 rating decision, the RO denied entitlement to an ealier effective date for service connection for his right shoulder disability. The Veteran again disagreed with such decision in June 2015. However, a statement of the case as to this claim has not yet been issued and, as such, this claim is addressed in the remand portion below. See Manlincon v. West, 12 Vet. App. 238 (1999). In February 2016, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript is associated with the record on appeal. At such time, the Veteran waived agency of original jurisdiction (AOJ) consideration of additional evidence that was associated with the record after the issuance of the February 2011 statement of the case. 38 C.F.R. § 20.1304(c) (2015). Therefore, the Board may properly consider such evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The issues of entitlement to service connection for back and bilateral foot disorders and an effective date prior to January 25, 2013, for the award of service connection for post-operative right shoulder condition are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Resolving all doubt in the Veteran's favor, his currently diagnosed obstructive sleep apnea is related to his military service. CONCLUSION OF LAW Obstructive sleep apnea was incurred during active military service. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for obstructive sleep apnea constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and the implementing regulations. A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other "than dishonorable." 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Service connection may be granted for a disorder resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disorder; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R.§ 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, obstructive sleep apnea is not recognized as a chronic disease. Therefore, presumptive service connection, to include on the basis of a continuity of symptomatology, is not warranted. 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims that his obstructive sleep apnea began during his most recent period of active duty from April 2006 to August 2007, and has continued since that time. As an initial matter, it is well established that the Veteran has a current diagnosis of obstructive sleep apnea, as shown by May 2008 VA treatment records. Thus, the Board finds that the requirements for a current disability have been met. Accordingly, the question becomes whether obstructive sleep apnea is related to the Veteran's military service. For the reasons below, the Board resolves all doubt in the Veteran's favor and finds that obstructive sleep apnea is related to his military service. In this regard, a May 2007 service treatment record (STR) documents the Veteran's in-service reports of severe snoring, interrupted sleep (as established by witnessed apnea episodes), and day time fatigue. The diagnosis at that time was possible sleep apnea and the treating clinician indicated that further evaluation in the form of a polysomnograph was needed. The Veteran, who was stationed in Kuwait in May 2007, has credibly reported that he declined to be transferred away from his unit for sleep testing at that time. However, VA treatment records indicate that in May 2008, less than a year after the Veteran's separation from active duty, he participated in a sleep study and obstructive sleep apnea was diagnosed. The diagnosis was confirmed by a February 2009 VA examiner, but he did not provide any opinion as to an etiological link between the Veteran's service and his obstructive sleep apnea. In addition to the medical evidence of record documenting in-service symptoms and a post-service diagnosis of obstructive sleep apnea, the Veteran credibly testified as to the onset of his symptoms during service at his February 2016 Board hearing and in lay statements submitted during the course of the appeal. Specifically, he referenced the May 2007 STR noted above and his exposure to many contaminates and dust storms while stationed in the Persian Gulf. While the RO has correctly noted that the record contains a June 2007 STR referencing in-service incurrence of obstructive sleep apnea that does not contain identifying information for the Veteran, the record also contains a copy of that record with additional information (including the Veteran's name) that was subsequently signed by the Veteran's unit commander in July 2007. Additionally, the Veteran has provided a May 2011 memorandum issued by the Department of the Army that indicates that the Veteran's insomnia and sleep intrusion that occurred in May 2007 were incurred in the line of duty. Ultimately, the Board finds that the competent and credible evidence of record indicates that the Veteran's obstructive sleep apnea is related to his military service. In this regard, the Board finds the Veteran's lay statements regarding the onset and continuity of his symptoms, which are supported by the objective evidence of record, to be competent, credible, and probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Thus, the Board finds that service connection is warranted as the medical evidence indicates that the Veteran's obstructive sleep apnea began during service, and he has competently and credibly provided lay accounts of the onset and continuity of symptoms associated with sleep apnea during and after service. Therefore, the Board resolves all doubt in the Veteran's favor and finds that service connection for sleep apnea is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for obstructive sleep apnea is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's service connection claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Board notes that, while the Veteran was provided a VA examination in February 2009, the examiner did not offer etiological opinions. For the below noted reasons, the Board finds that new examinations with opinions addressing the etiology of his back and bilateral foot disorders is necessary to decide his claims. With regard to the Veteran's claimed back disorder, he has alleged that such was initially caused by lifting a teletype machine during a period of ACDUTRA in April 1988. Alternatively, he has argued that his back disorder was aggravated by his subsequent periods of active duty service. The Veteran's December 1984 enlistment examination notes an abnormality of the spine; specifically, the examiner appears to have written "[left] pelvis lower than [right], mild scoliosis [left], [not considered disabling.]" No subsequent records relating to the Veteran's back indicate a diagnosis of scoliosis. However, the Veteran's STRs do document frequent reports of low back pain and the Veteran was assigned to limited duty profiles due to his back disorder on several occasions. Notably, a pre-deployment questionnaire that was completed by a physician in May 2003 indicates that the Veteran's chronic low back pain "...was aggravated by activity during deployment." There are no medical opinions of record related to the etiology of the Veteran's claimed back disorder. Therefore, on remand, a new VA examination with an etiology opinion should be obtained. Additionally, as the Veteran has claimed that he initially injured his back while performing ACDUTRA in April 1988 and as the specific dates on which he served on ACDUTRA and/or INACDUTRA are not of record, on remand the AOJ should verify any and all periods of ACDUTRA and INACDUTRA. Turning to the Veteran's claim for service connection for a bilateral foot disorder, he alleges that his such is a result of wearing ill-fitting shoes and performing military duties on gravel-covered, uneven ground while stationed in the Persian Gulf. Notably, while the Veteran initially claimed service connection for right foot plantar fasciitis, the RO expanded his claim to include any bilateral foot disorder, apparently due to the fact that the Veteran's December 1984 enlistment examination notes an abnormality of the feet; specifically, pes planus that was not considered to be disabling at that time. In this regard, an April 1998 treatment record from Dr. G.D. indicates that the Veteran's then existing bilateral foot disorder was possibly aggravated by his active duty as evidenced by the condition of his orthotics after drilling. STRs indicate that the Veteran had some problem with his feet during service, including ingrown toenails, blisters, right foot pain, and hypermobile flat feet. As noted by the RO, the record also contains a "Statement of Medical Examination and Duty Status" dated in June 2007 that does not have any of the Veteran's identifying information on it. That record notes that plantar fasciitis was incurred in the line of duty. There is no indication from the evidence currently of record that this report was ever completed or that an official ruling by the Department of the Army was ever issued. There are no medical opinions of record related to the etiology of the Veteran's claimed foot disorder. Therefore, on remand, a new VA examination with an etiology opinion should be obtained. Remand is also required for procurement of outstanding records. In this regard, the Veteran's STRs contain letters from Dr. G.B. (Convenient Care, LTD, 2001), Dr. G.D. (podiatric medicine, 1998), Dr. T.D (chiropractic care, 1998), Dr. A.U. (Lake Care Family and Urgent Medical Center, 1988), and Dr. R.F. (Radiologic Interpretations, 1988). On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his back and foot disorders. Additionally, given the time that will pass during the processing of this remand, updated VA treatment records should also be associated with the record. Finally, with respect to the Veteran's claim for an earlier effective date for service connection for his right shoulder disability, in December 2013 rating decision, the RO awarded service connection for post-operative right shoulder condition, effective January 25, 2013. In a January 2014 statement, the Veteran essentially disagreed with the assigned effective date as he argued for a temporary total rating based on surgery that was performed in November 2012. Thereafter, in a June 2014 rating decision, the RO denied entitlement to an earlier effective date for service connection for his right shoulder disability. The Veteran again disagreed with such decision in June 2015. When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to an SOC. See 38 C.F.R. § 19.26. Thus, remand for issuance of an SOC on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an SOC regarding the issue of entitlement to an effective date prior to January 25, 2013, for the award of service connection for post-operative right shoulder condition. Advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 2. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal, to specifically include Dr. G.B. (Convenient Care, LTD, 2001), Dr. G.D. (podiatric medicine, 1998), Dr. T.D. (chiropractic care, 1998), Dr. A.U. (Lake Care Family and Urgent Medical Center, 1988), and Dr. R.F. (Radiologic Interpretations, 1988). After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from February 2015 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Contact any appropriate source, to include the National Personnel Records Center, to verify the Veteran's periods of ACDUTRA and INACDUTRA. In making these requests, use the Veteran's complete name, as listed on his Forms DD 214. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his claimed back and bilateral foot disorders. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) The examiner should identify all currently diagnosed back and bilateral foot disorders. (B) For each currently diagnosed disorder other than scoliosis and pes planus, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is related to any period of the Veteran's military service, to include his period of ACDUTRA from March 1985 to August 1985 and his periods of active duty from March 2003 to June 2003 and April 2006 to August 2007, to include his in-service reports of back pain, his report of crushing several vertebrae while moving a heavy teletype machine over his head, his use of ill-fitting boots during marches, and his marching over large pebbles carrying heavy equipment therein. (C) If scoliosis and/or pes planus is diagnosed, the examiner should state whether such condition constitutes a congenital or developmental defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease). Regarding pes planus, it is essential to make a distinction, if possible, between bilateral flatfoot as a congenital versus an acquired condition. For VA purposes, the congenital condition presents with depression of the arch, but no evidence of abnormal callosities, areas of pressure, strain or demonstrable tenderness; the acquired condition is manifest by anatomical changes, as compared to normal, in the relationship of the foot and leg, particularly to the inward rotation of the superior portion of the os calcis, medial deviation of the insertion of the Achilles tendon, the medial tilting of the upper border of the astragalus. (i) If the Veteran's diagnosed scoliosis and/or pes planus is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during any period of service? If so, please identify the additional disability. (ii) If the examiner finds that the Veteran's diagnosed scoliosis and/or pes planus is a disease, was it aggravated beyond the natural progression during any period of military service? Aggravation indicates a permanent worsening of the underlying condition as compared to a temporary increase in symptoms. (iii) If scoliosis and/or pes planus is not a congenital or developmental defect or disease, the examiner is asked to opine as to whether the disorder increased in severity during any period of service. If so, the examiner is asked to opine as to whether there is clear and unmistakable evidence that such increase in severity is due to the natural progress of the condition. In addressing such opinions, the examiner is specifically advised that at the time of his 1984 entrance examination, the Veteran's then existing scoliosis and pes planus were described as not currently disabling. In answering each of the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's service connection claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs