Citation Nr: 1804504 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-09 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an increased rating in excess of 10 percent for chronic lumbar strain. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran had honorable active service in the U.S. Navy from June 1980 to June 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida A Board hearing via videoconference was conducted in May 2017. A transcript of this hearing is contained within the electronic claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. The issue of entitlement to an increased rating for lumbar strain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT It is as likely as not that the Veteran's obstructive sleep apnea began in service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim of entitlement to service connection are moot. Law and analysis In this case the Veteran is seeking service connection for sleep apnea, which he asserts had its onset during his period of active service. Generally, 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, 1131 (West 2014); 38 C.F.R. § 3.303(a)(2017). To establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records show in a March 2000 and a June 2002 report of medical history, the Veteran reported frequent trouble sleeping. Post-service treatment records show the Veteran was diagnosed with obstructive sleep apnea via sleep study in July 2009. The Veteran was afforded a VA examination in March 2010. The examiner noted the 2009 diagnosis of sleep apnea and that the Veteran's active medical record was silent for diagnosis or treatment of sleep apnea. The examiner opined that the Veteran's sleep apnea was less likely than not caused by or a result of active military service. He stated that although the Veteran's service treatment records note fatigue, it is not unique or specific to sleep apnea. The examiner also noted the Veteran's current obesity as a factor in his sleep apnea. Along with his lay statements and May 2017 testimony regarding his sleep apnea symptoms beginning in service, the Veteran submitted multiple lay statements by fellow servicemen and his wife attesting to his in-service snoring and difficulty breathing during sleep. Based on the foregoing, with resolution of reasonable doubt in his favor, the Board finds that entitlement to service connection for OSA is warranted. First, the Veteran has a current diagnosis of sleep apnea. Second, there are in-service symptoms. The Veteran is competent to identify such lay observable symptoms. See Jandreau, supra; Buchanan, supra. The Board finds his lay statements are credible as they have been consistent throughout the claims process. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Third, the evidence supports a finding that the Veteran's sleep apnea had its onset during service. Although the VA examiner provided a negative opinion, the Board finds the lay statements regarding the onset and continuity of his symptoms to be probative as to the etiology of his sleep apnea. Therefore, with resolution of the doubt in favor of the Veteran, the criteria for service connection for sleep apnea have been met. ORDER Service connection for sleep apnea is granted. REMAND Regarding the Veteran's claim for an increased rating for his lumbar strain, at the May 2017 Board hearing, the Veteran testified that the symptoms of his lumbar strain have worsened since his most recent VA examination in 2012. Therefore, a new examination is warranted. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the case is REMANDED for the following action: 1. Any relevant outstanding treatment records must be associated with the claims file. The Veteran's assistance in identifying and obtaining any treatment records should be solicited as needed. All attempts to obtain records should be documented in the claims file. 2. Schedule the Veteran for an examination of his lumbar spine strain by an appropriate VA examiner. The examiner must be provided access to the electronic claims folder. A detailed assessment of the Veteran's pertinent medical history, current complaints and clinical findings should be furnished. All orthopedic findings should be set out and ranges of motion shall be specified in degrees. The examiner must also note any periods of physician-prescribed bed rest due to incapacitating episodes. The examiner must specifically provide an opinion as to any neurological manifestations of the Veteran's lumbar spine disorder regarding his bilateral lower extremities. If separate, associated neurological disorders are found, the examiner should detail all functional impairment due to the back pathology. If there is other neurological disease/injury, unrelated to the low back pathology that is causing symptoms that should be noted. All necessary tests and studies should be performed and all functional impairment should be set forth in detail. 3. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If a benefit sought is not granted, provide the Veteran a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs