Citation Nr: 1645924 Decision Date: 12/01/16 Archive Date: 12/20/16 DOCKET NO. 10-36 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for insomnia to include sleep apnea. 2. Entitlement to a rating in excess of 30 percent for tension headaches. 3. Entitlement to a rating in excess of 10 percent for right knee medial collateral ligament strain with osteoarthritis, Osgood-Schlatter disease, and Baker's cyst. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to May 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for right knee strain and assigned a 10 percent rating, effective June 17, 2008, granted service connection for tension headaches and assigned a noncompensable rating effective August 13, 2008, and denied service connection for insomnia and a rash. The Veteran appealed the denials of the service connection claims and the ratings assigned for right knee strain and tension headaches. The August 2010 statement of the case included all four issues but in his VA Form 9 the Veteran only appealed the issues listed on the title page of this decision. Although in a May 2016 rating decision, the rating for tension headaches was increased to 30 percent (effective August 13, 2008), because this is not the highest possible rating for this disability, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). In July 2016 the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issue of entitlement to a rating in excess of 30 percent for tension headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. It is at least as likely as not that the Veteran's sleep apnea had its onset during service and has continued ever since. 2. In a July 2016 written statement, prior to the promulgation of a decision in this appeal, the Board received notification from the Veteran of his desire to withdraw his appeal for the issue of entitlement to a rating in excess of 10 percent for right knee medial collateral ligament strain with osteoarthritis, Osgood-Schlatter disease, and Baker's cyst. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). 2. The criteria for withdrawal of a Substantive Appeal by the Veteran have been met for the claim of entitlement to a rating in excess of 10 percent for right knee medial collateral ligament strain with osteoarthritis, Osgood-Schlatter disease, and Baker's cyst. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Other specifically enumerated disorders will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the United States Cour of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that service connection for insomnia, to include sleep apnea, is warranted because it began during service and has continued ever since. The Veteran claims that he had all of the typical symptoms of sleep apnea during service, namely, morning headaches, insomnia, weight gain, snoring, and fatigue. A review of the service treatment records reveals that in June 1989 the Veteran was seen for headaches and insomnia. A September 1990 service treatment record notes that the Veteran's weight exceeded the maximum allowable weight for the U.S. Marine Corps. No diagnosis of sleep apnea is contained in the service treatment records. The Veteran submitted a buddy statement from D.E. in July 2016. In the statement, D.E. indicated that he recalled the Veteran having gained approximately 25 pounds during service and that the Veteran snored very loudly during service. D.E. also recalled the Veteran going to sick call for insomnia and headaches in service. An August 2009 letter from the Veteran's spouse (Y.B.) indicates that since 1996 the Veteran was a very loud snorer. During sleep he would stop breathing (sometimes gasping for air), choke, and have difficulty staying asleep. He would always complain he was tired and needed rest. It took 10 years before Y.B. could get the Veteran to see a doctor, and by that time his sleep apnea was severe. An August 2009 letter from the Veteran's former spouse (K.A.B.) indicates that since 1988 when they were engaged, the Veteran was a light snorer. After returning from service duty assignments K.A.B. noticed that the Veteran's snoring became more severe; he would stop breathing during sleep, and would choke and gasp for air. She and the Veteran separated in 1994 and were divorced in 1996. The symptoms worsened until that time. An August 2010 letter from the Veteran's private physician, Dr. Magalang, states that the Veteran was diagnosed with obstructive sleep apnea in June 2006. After reading the Veteran's records from 1986 to the present and speaking to the Veteran's spouse regarding the Veteran's symptoms upon returning from active duty, Dr. Magalang stated that although there was no diagnosis of sleep apnea during service, it is more likely than not that the Veteran's sleep apnea developed during active duty. Dr. Magalang noted that most patients have sleep apnea for many years prior to a diagnosis being made. The opinion was based in part on the symptoms reported in the statement from K.A.B., which the Board finds credible. An August 2010 VA examination report notes that the Veteran gained 23 pounds during his four years in service. The Veteran reported the following symptoms: headaches, insomnia, weight gain, loud snoring, waking up frequently at night, and fatigue. The Veteran reported that his doctor felt that his insomnia, diagnosed in 1989, is related to sleep apnea. The Veteran's wife in 1996, Y.B., stated that the Veteran snored very loudly, would stop breathing (sometimes would gasp for air), would choke, snore, and have difficulty staying asleep. Y.B. stated that it took 10 years to get the Veteran to see a doctor. The Veteran's ex-wife, K.A.B., stated that in 1988 the Veteran was a light snorer but it progressively got worse/louder. The VA examiner opined that there is nothing in the evidence showing symptoms that are precursors to sleep apnea. The service treatment records show a diagnosis of tension headaches and a singular complaint of insomnia during service. The Veteran reported that his symptoms have resolved with the use of a CPAP machine. The examiner noted that the lay statements are very convincing and support symptoms related to sleep apnea. However, these symptoms were not addressed for 20 years after service and there is no documentation of loud snoring, frequently waking up in the night or fatigue ever being reported. The VA examiner noted that the Veteran had other contributing factors at the time of the diagnosis in 2006, including weight gain, Mallampatal score of Class IV with a large tongue and mild tongue ridging, and hypertension. In conclusion, the VA examiner opined that the Veteran's sleep apnea is less likely as not caused by or a result of symptoms or events that occurred during his military service. In August 2010 the Veteran submitted a statement indicating that he had a steady weight gain leading up to his diagnosis of sleep apnea. He also indicated that it did not take 20 years for him to seek help for sleep apnea; it was 16 years. He indicated that during service not much was known about sleep apnea and that there were few sleep centers available to diagnose sleep apnea in the late 1980s and early 1990s. Further, the Veteran indicated that the VA examiner did note that the lay statements were very convincing and supported symptoms related to sleep apnea. The Veteran concluded by stating he did not have this problem prior to service, he had all of the symptoms of sleep apnea in service, and military medical personnel were not trained to recognize the warning signs of a sleep disorder such as sleep apnea because it was so new to the medical field. After reviewing the medical and lay evidence of record, the Board finds that it is at least as likely as not that the Veteran's insomnia to include sleep apnea began during service and has continued ever since. The service treatment records document insomnia, and the medical and lay evidence document symptoms of sleep apnea during service (even the August 2010 VA examiner agreed to such evidence of symptoms of sleep apnea). The medical and lay evidence also indicates that the Veteran's symptoms of insomnia and sleep apnea have continued ever since service. In this regard, the Veteran, and his spouse and former spouse, have alleged ongoing symptoms, and the August 2010 private medical opinion states that the Veteran's sleep apnea was more likely than not present during service based on the reported symptoms. Dr. Magalang reviewed the evidence of record and adequately supported the stated opinion. While the August 2010 VA examiner provided an opinion against the claim, the examiner did not adequately address the Veteran's and other lay statements regarding continuing symptoms since service in rendering such opinion. The Board notes that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, the Board concludes that the August 2010 VA medical opinion is of limited probative value and is not sufficient to preponderate against the claim. Further, the Federal Circuit has held that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Buchanan v. Nicholson, 451 F.3d. 1331, 1336 (Fed. Cir. 2006). As a finder of fact, though, the Board may weigh the absence of contemporaneous records when assessing the credibility of the lay evidence. Here, the Veteran, his buddy, and his spouse and former spouse are competent to describe the sleep symptoms he experienced during and since military service, a history consistent with the available medical evidence which reflects the diagnosis of insomnia and sleep apnea (and with Dr. Magalang's statement that sleep apnea can be present prior to the diagnosis). The Board concludes that insomnia to include sleep apnea had its onset during his period of active duty and has continued ever since. Accordingly, service connection for sleep apnea is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Withdrawal of Substantive Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran, in correspondence received by VA in July 2016, has withdrawn his appeal for the issue of entitlement to a rating in excess of 10 percent for right knee medial collateral ligament strain with osteoarthritis, Osgood-Schlatter disease, and Baker's cyst. Such withdrawal is effective the date the letter was received at the Board. 38 C.F.R. § 20.204(b)(3). Accordingly, the Board does not have jurisdiction to review the appeal of the issue of entitlement to a rating in excess of 10 percent for right knee medial collateral ligament strain with osteoarthritis, Osgood-Schlatter disease, and Baker's cyst. ORDER Entitlement to service connection for sleep apnea is granted. The appeal of the issue of entitlement to a rating in excess of 10 percent for right knee medial collateral ligament strain with osteoarthritis, Osgood-Schlatter disease, and Baker's cyst is dismissed. 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 remaining claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran claims that his tension headaches are more severe than contemplated by the current 30 percent rating. The Veteran last underwent a VA examination for his headaches in October 2015. At that examination the Veteran indicated that he had about four to six headaches a month, two of which are severe headaches, and that he has called in to work sick three times in the past 12 months due to his headaches. In contrast, at the July 2016 videoconference hearing the Veteran reported having four to eight headaches a month, two to three of which are severe (debilitating) headaches, and that he misses at least two to three days of work a month due to his headaches. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Weggenmann v. Brown, 5 Vet. App 281 (1993). Based upon the Veteran's testimony, the Board finds that a remand is required in order to schedule the Veteran for a VA examination to determine the current severity of his service-connected tension headaches. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected tension headaches. The claims file must be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's service-connected headaches. In particular, the examiner must state whether there is any evidence of characteristic prostrating attacks, and the frequency thereof; and whether there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. After the development requested is completed, readjudicate the claim on appeal. If the benefit sought remains denied, furnish the Veteran a supplemental Statement of the Case and allow him a reasonable 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 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). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs