Citation Nr: 1803046	
Decision Date: 01/17/18    Archive Date: 01/29/18

DOCKET NO.  14-07 851	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for sleep apnea, claimed as a respiratory condition.

2.  Entitlement to service connection for allergic rhinitis, claimed as a respiratory condition.

3.  Entitlement to service connection for refractive error and mild dry eyes, claimed as a bilateral eye condition.


ATTORNEY FOR THE BOARD

R. Connally, Associate Counsel




INTRODUCTION

The Veteran, who is the appellant in this case, had service from July 1978 to December 1978, from November 1990 to May 1991, and from October 2002 to September 2003.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision and August 2011 notification letter issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

The issues of increased ratings for bilateral hearing loss and tinnitus have been raised by the record in a March 2014 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See VA Form 9, received March 5, 2014.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The issues of entitlement to service connection for allergic rhinitis and bilateral dry eyes are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran is currently diagnosed with obstructive sleep apnea.

2.  After affording the benefit of the doubt, sleep apnea is related to service.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria to establish service connection for sleep apnea have been met.  38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).  The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  See Gilbert, 1 Vet. App. at 53.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Service Connection for Sleep Apnea

The Veteran contends that he developed sleep apnea as a result of service.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

Private treatment records show a current diagnosis for sleep apnea since June 2006.  Service treatment records do not document treatment for obstructive sleep apnea (OSA).  However, the Veteran explained during his December 2010 VA examination that he first noticed sleep apnea symptoms during his second period of service.  The Veteran told the VA examiner that he remembered experiencing dust, smoke fires, and burn pits while stationed in Saudi Arabia.  He also mentioned having nasal congestion during that period.  The Veteran told the examiner that he remembered other soldiers in Saudi Arabia telling him that he snored very loudly.  He also stated that during his third period of service at Guantanamo Bay others told him that he snored loudly and "seemed to choke while sleeping."  His wife also told him this same thing when he returned from this third period of active service.  

The Veteran's wife also submitted a statement in support of this claim in March 2010.  She explained that she noticed the Veteran's breathing and sleep issues since his participation in the Persian Gulf War.  She also observed the Veteran's symptoms of daytime somnolence and labored breathing during sleep since he left service.  Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007).  Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg.  Id.  The Veteran's and his wife's statements of sleep apnea symptoms are probative to the extent that they reflect symptoms supported by a later diagnosis.

The December 2010 VA examiner opined that the Veteran's severe obstructive sleep apnea was not caused by or a result of complaints of shortness of breath found in service treatment records from May 1991.  However, the examiner did find that while the Veteran's sleep apnea was not diagnosed until June 2006, "the symptoms could have started many years before, even before [the Veteran] can be aware of his loud snoring or his labored breathing during sleep."  The examiner opined that the date of onset "can only be estimated based on the history, and for this Veteran it was during active service in Saudi Arabia."  The Board finds this medical opinion highly probative of a positive nexus between the Veteran's current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

A private medical opinion was received in October 2011.  The physician opined that the Veteran's sleep apnea symptoms of loud and chronic snoring as well as episodes of gasping for air while sleeping are "more probable than not" related to service. 

On review of all the evidence, lay and medical, and resolving reasonable doubt in the Veteran's favor, the Board finds that sleep apnea is related to service.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Duties to Notify and Assist

VA has duties to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).  The Board is granting, in full, the benefit sought on appeal and thus VA has no further duty to notify or assist.


ORDER

Service connection for sleep apnea is granted. 


REMAND

Although the Board regrets the additional delay, a remand is required in this case.

The Veteran asserts that he developed bilateral eye and respiratory disabilities as a result of service.  Service treatment records show that the Veteran endorsed ear, nose, and throat trouble and was treated for nasal congestion during his second period of service.  VA treatment records show current treatment for allergies.  The Veteran and his wife also submitted statements regarding bilateral eye irritation after an incident where an inmate spit into his eyes during his last period of service.  Accordingly, VA examinations were obtained.

The March 2010 VA examiner diagnosed refractive error (myopia, astigmatism, and presbyopia) and mild dry eyes.  Refractive error of the eye is not a disability for which service connection may be granted.  However, the examiner opined that the Veteran's symptoms of mild dry eyes is not related to his military service, but did not provide any rationale with this opinion.  

The April 2011 VA examiner opined that the Veteran's file was "non-contributory for sinus disease nor nasal congestion."  The examiner further opined that the respiratory condition was not caused by or a result of the mild allergic rhinitis and rather the respiratory condition was related to the sleep apnea.  Significantly, a 2010 VA examination concluded there was mild allergic rhinitis.  Private records also suggests a diagnosis of allergic rhinitis.  VA outpatient treatment records reflect the Veteran had a past history of a nasal septum surgical repair.  The Board finds the April 2011 opinion inadequate.  First, it is unclear whether the examiner is finding there is a diagnosis of a respiratory condition.  Furthermore, the opinion does not take into account the Veteran's report of onset or exposure to various factors that he said occurred during service are related to his current symptoms.

Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examination medical opinions failed to provide an adequate rationale to support the conclusions or discuss the contrary evidence associated with the record that supports the Veteran's claims.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a medical opinion must "support its conclusion with an analysis that the Board can consider and weigh against contrary opinions[;]" see also Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008) (concluding that a medical opinion is not entitled to any weight if it does not contain a rationale that adequately connects data and conclusions).  Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disabilities.  Colvin v. Derwinski, 1 Vet. App. 171 (1991).  In light of the above, the Board finds that a new VA examination opinions must be obtained for the allergic rhinitis and bilateral eye disabilities.

Accordingly, these issues are REMANDED for the following action:

1.  Obtain copies of any outstanding VA treatment records, dated from September 2009 to the present, which are not currently of record and associate them with the Veteran's file.  If these records do not exist, this must be clearly annotated in the file.

2.  Obtain an addendum VA medical opinion (and schedule the Veteran for a VA examination, if necessary) to address the nature and etiology of any current allergic rhinitis.  The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination and note this in the examination report.  The claims file must be made available for review to the examiner.  The examiner must address the following:

a) Clarify whether the Veteran has a current respiratory disorder.
b) For any respiratory disorder diagnosed, including the previously diagnosed allergic rhinitis and nasal septum surgery, opine whether it is at least as likely as not (50 percent of greater probability) that the condition is related to service, to include his reports of in-service symptoms and exposure to dust, smoke fires, and burn pits while stationed in Saudi Arabia.
c) For any respiratory disorder diagnosed, including the previously diagnosed allergic rhinitis and nasal septum surgery, opine whether it is at least as likely as not (50 percent of greater probability) that the condition is caused or aggravated by the Veteran's sleep apnea.

The examiner should specifically discuss the following: the Veteran's lay report of in-service symptoms and exposure to ambient factors like weather conditions, pollination, contaminated air, etc.  

In rendering the requested opinion, the examiner is advised that the Veteran is competent to report in-service injuries, symptoms and history.  Such reports must be specifically acknowledged and considered in formulating any opinions.  The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding.  

All opinions should be supported by a clear rationale.  

3.  Obtain an addendum VA medical opinion (and schedule the Veteran for a VA examination, if necessary) to address the nature and etiology of any current dry eye disability.  The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination and note this in the examination report.  The claims file must be made available for review to the examiner.  The examiner must address the following:

a) Whether it is at least as likely as not (50 percent of greater probability) that the Veteran's mild dry eye disability is related to service, to include irritation caused by an inmate spitting in his eyes.

In rendering the requested opinion, the examiner is advised that the Veteran is competent to report in-service injuries, symptoms and history.  Such reports must be specifically acknowledged and considered in formulating any opinions.  The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding.  

All opinions should be supported by a clear rationale.

4.  After completing the above and conducting any additional development deemed necessary, readjudicate the claims on appeal in light all additional evidence received.  If the benefits sought on appeal are not granted, the Veteran should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

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).  

This claim 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 action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



_________________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs