Citation Nr: 1802789 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-22 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right hip disability, to include bursitis. 2. Entitlement to service connection for sleep apnea, to include as secondary to hypertension and/or left ventricular hypertrophy. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to March 1985, from January 2006 to January 2007, from May 2007 to May 2008 and from July 2008 to August 2009. These matters come before the Board of Veterans' Appeals (Board) from June 2012 and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the electronic claims file. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence supports a finding that the Veteran has a currently diagnosed right hip condition, specifically bursitis, which had onset during a period of active duty service. CONCLUSION OF LAW The criteria for establishing service connection for right hip bursitis are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2017)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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). The Veteran claims he injured his right hip/iliotibial band in November 2006 when taking an Army Physical Fitness test while on active duty. See October 2010 Statement in Support of Claim. Since that time, he has sought treatment, to include physical therapy, for recurrent hip pain. Service treatment records (STRs) show complaint of hip pain in November 2006. A December 2006 STR indicated complaint of pain on the side of the right hip for a few weeks and that the Veteran had decreased running due to pain. Bursitis trochanteric was assessed. STRs during subsequent periods of service continue to show treatment for bursitis and continuing right hip pain. See March 18, 2008 STR (assessing signs and symptoms consistent with trochanteric bursitis); See August 13, 2007 STR (treatment for right hip pain, bursitis noted). Following his application for service connection, the Veteran underwent a VA examination in September 2010. He indicated he initially thought he had a right hip muscle pull while on active duty. He recalled running and developing pain in the right hip flexor. He reported treatment with acupuncture and physical therapy with improvement. He described the pain as constant, mild and achy and that it increased with prolonged sitting. X-ray showed no degenerative change in the right hip and no evidence of stress fracture. A normal right hip was assessed and the claim was denied. Private treatment records and VA treatment records show continuing complaints of pain and continuing treatment in the form of physical therapy and acupuncture. These records also contain diagnoses of trochanteric bursitis and ischial bursitis in the right hip. See, i.e., September 2012 Orthopedic Specialists Record; October 2015 Carolinas Pain Institute Record; October 2015 VA Physical Medicine Rehab Consult Note. At his hearing before the Board, the Veteran testified that he felt a pull in his right leg while sprinting during a physical fitness test while on active duty in November 2006. He indicated he could not sleep on his right side due to the pain. He sought treatment and underwent continuing physical therapy at several different facilities both while on active duty, the time between active duty and after active duty. During this time, he had been offered reasonable accommodations for his job, to include a standup desk and a wheelchair cushion because he continues to be unable to sit for prolonged periods. He recognized that his range of motion is normal, but stated that his pain is chronic and he has attempted to find relief through acupuncture and radio frequency ablation. He testified that his condition had onset while on active duty and had continued since that time. Based on a review of the foregoing, the Board finds that the criteria necessary to establish service connection for a right hip condition, specifically bursitis, are met. Service treatment records show treatment for right hip pain during a period of active duty and a diagnosis of bursitis while on active duty. Additional service treatment records, private treatment records and VA treatment records show continuing treatment from that time to the present for the same condition. As such, the Board concludes that right hip bursitis was incurred in service, the Veteran currently still has bursitis and that service connection is warranted. ORDER Service connection for right hip bursitis is granted. REMAND The Board regrets additional delay but finds that further development is necessary in order to fully satisfy the duty to assist the Veteran on the remaining claim. The Veteran alleges that sleep apnea had onset during his active duty service. His private doctor provided an opinion that he had suffered with sleep apnea for many years and the condition is known to contribute to and be a causal factor of hypertension. The Veteran is service-connected for hypertension which was shown to have had onset in service. In July 2015, the Veteran underwent a VA examination in connection with his claim. He stated he was initially evaluated for sleep apnea in 2010. He was falling asleep at work, had low energy, was snoring and his wife complained. He related that his sleep study was initially negative, but thereafter, when he underwent a second study in April 2015, it revealed mild obstructive sleep apnea. Opinions were obtained regarding whether sleep apnea was at least as likely as not proximately due to or the result of hypertension and/or left ventricular hypertrophy. It was determined that the predominance of medical literature did not support a finding that hypertension or left ventricular hypertrophy caused sleep apnea. It was explained that sleep apnea occurs when muscles in the back of the throat relax and the Veteran had three risk factors for sleep apnea, to include being African American, having a substance abuse history and being a smoker. Given this, the claim was denied. In his August 2015 notice of disagreement, the Veteran argued that sleep apnea may have been the cause of his service-connected hypertension which manifested while on active duty. At his October 2017 hearing before the Board, the Veteran explained he did not have a history of hypertension prior to going on active duty and that he was prescribed medication for hypertension while on active duty. He indicated that after active duty he began to have a high level of carbon monoxide in his blood and he was sent for a sleep study. Although the first study was negative, it was determined he needed to take another sleep study after several changes in his blood pressure medication. This study revealed sleep apnea. He indicated that once he began using a CPAP machine, his blood pressure went back to normal and the carbon monoxide level was back in an acceptable range. He again argued his belief that he had sleep apnea in service prior to his diagnosis of hypertension. Currently, the record does not contain an opinion regarding direct service connection and whether it is at least as likely as not that sleep apnea had onset during a period of active duty. As such, the Board will remand the claim for an addendum opinion to consider the Veteran's arguments regarding a direct nexus between his active duty service and sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to the claim for sleep apnea. All identified VA records should be added to the claims file, to include records dating from December 2016. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Refer the Veteran's claims file to the VA examiner who conducted the July 2015 VA examination, or if unavailable, another suitably qualified VA medical professional, for a supplemental opinion as to the etiology of his sleep apnea. If, after review of the claims file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The examiner should render an opinion consistent with sound medical judgment as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that sleep apnea had its onset in or is otherwise related to service given the Veteran's testimony that that he had symptoms of sleep apnea in service and his belief that sleep apnea caused his hypertension which was incurred in service and is service connected. In providing this opinion, the examiner should consider the August 2015 private medical opinion of Dr. S.B. that the Veteran developed hypertension in military service and that sleep apnea is known to be a contributory and causal factor of hypertension as well as the June 2015 statement of the Veteran's wife that she witnessed the Veteran snoring during each of his active duty periods between 2006 and 2009. The examiner is asked to provide a rationale for the opinions provided. If the examiner is unable to provide an opinion without resort to speculation he or she should explain why. 3. Then, the claim should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs