Citation Nr: 1626122 Decision Date: 06/29/16 Archive Date: 07/11/16 DOCKET NO. 11-12 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected low back disorder. 2. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Navy from December 1973 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The claims were remanded in October 2014 for evidentiary development. The Veteran appeared at a Videoconference hearing in November 2013. A transcript is of record. The issue of entitlement to service connection for a right shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran developed OSA as a result of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea (OSA) have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303. (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The record reflects that the Veteran was diagnosed with OSA following a sleep study in 2009. He had reported daytime sleepiness, snoring, breathing problems, and fatigue during the time proximate to his diagnosis, and he was placed on continuous positive airway pressure (CPAP) respiratory therapy. Service treatment records do not contain any documentation of a diagnosis of sleep apnea. At the time of his separation from service, an August 1993 service department note listed that the Veteran was "followed by a psychologist" for sleeping issues. A March 2015 VA examination noted that the Veteran has had a diagnosis of OSA since 2009. The Veteran reported to the examiner that he felt sleepy during his work hours while in active naval service. Additional lay evidence are letters sent by both the Veteran and his daughter, which describe frequent drowsy periods during daylight hours. The 2015 VA examiner stated that the "two most significant risk factors for developing sleep apnea are increasing weight and age." The examiner continued to explain that "significant weight gain" did not occur until approximately 16 years after his separation from service, and that it was "less likely than not that his diagnosis of OSA was incurred in or caused by his military service." The examiner stated that "although people with severe sleep apnea often get increased aches and pains due to poor sleep, sleep apnea is caused by obstruction of the upper airway." This obstruction is "not affected by the lower back, and there is no established causative relationship [between] lumbar spine degenerative disc disease and sleep apnea." A previous VA examination, dated in April 2011, noted that the Veteran had an emergency psychiatric evaluation in service in which sleep problems were assessed. There was anxiety present, and the Veteran had good follow-up care with a psychologist. Of significant note, it was mentioned that the Veteran exhibited obesity while he was on active duty. While this examiner noted the lack of documentation of other risk factors, the presence of obesity in service is very significant in light of later-developed obstructive sleep apnea. Service treatment records indicate an express recommendation for weight loss, with a July 1988 clinical note specifically including such an assessment so that back pain would be alleviated. When the Veteran entered naval service, he weighed 148 pounds. Five years after entrance, in 1978, he was listed at 185 pounds. In 1987, he was 210 pounds. In 1993, proximate to his separation, he was listed as 205 pounds. The Veteran, who is approximately 69 inches tall, went from 148 pounds to well over 200 pounds in the 20 years of his active service. He aged from young adulthood to middle age while in the Navy, and had a significant weight gain of approximately sixty pounds during this time. As noted, naval personnel recommended that the Veteran lose weight, and the 2011 VA examiner has classified the Veteran has having been obese while on active duty. The 2015 examiner, while noting the risk factor of obesity as being causative of sleep apnea, was incorrect in assessing that weight gain did not happen until 2009. Indeed, aggressive weight gain, as well as natural aging, occurred during the two decades of the Veteran's active naval service. Given the identified risk factors for sleep apnea being present in naval service, and also in light of the Veteran reporting in-service symptoms, which were later reported to VA personnel as involving drowsiness during work hours in a clinical context, the Board can conclude that OSA had causal origins in service. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). ORDER Service connection for obstructive sleep apnea (OSA) is granted. REMAND The Board remanded the claim so that a new VA examination could be afforded. The returned opinion, dated in March 2015, is not adequate to resolve the issue on appeal. Specifically, the examiner reported that the Veteran experienced an in-service shoulder injury in 1991 and that this "can possibly cause traumatic arthritis to develop years later." The examiner opined that signs and symptoms suggestive of this "[were] not present"; however, it was also reported that "no imaging is available to verify a rotator cuff injury or the arthritis noted on the separation physical examination [report]." The examiner did not explain as to why he did not or could not order radiographic studies which could potentially confirm the existence of old injury residuals in the joint (which would be supportive of the claim). The claim is remanded for a new examination to address the etiology of any currently present right should disability. Accordingly, the case is REMANDED for the following action: 1. RETURN THE FILE TO THE EXAMINER WHO CONDUCTED the March 2015 assessment, for the purposes of determining the nature and etiology of any currently present right shoulder disability. If the examiner is no longer available, have the examination conducted by an equally qualified examiner. *The examiner must order radiographic films and conduct any other testing necessary to determine if current right shoulder disability, to include right shoulder strain and arthritis, is causally related to service. *Specific treatments for right shoulder symptoms in June 1987, August 1989, and August 1993 must be discussed. *The consistency or inconsistency of current radiographic studies with remote traumatic origins must be expressly discussed. THE EXAMINER MUST PROVIDE A COMPLETE EXPLANATION FOR HIS/HER OPINIONS. CONCLUSORY AND/OR UNSUPPORTED OPINIONS ARE NOT ACCEPTABLE AND WILL REQUIRE ADDITIONAL REMAND FOR REMEDIAL COMPLIANCE WITH BOARD DIRECTIVES. 2. Following the above-directed development, re-adjudicate the Veteran's claim. Should the claim remain denied, issue an appropriate supplemental statement of the case and forward the claim to the Board for adjudication. 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 2014). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs