Citation Nr: 1804908 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 951A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for degenerative joint disease of the cervical spine (claimed as arthritis in the neck). 3. Entitlement to service connection for left hand numbness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issues of entitlement to service connection for degenerative joint disease of the cervical spine and entitlement to service connection for left hand numbness are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is in equipoise as to whether the Veteran's sleep apnea had its onset in service. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication. Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in August 2011 and March 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the March 2014 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also 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) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Sleep Apnea The Veteran's service treatment records indicate that he complained of sleep troubles beginning in October 2006. He had knee pain, and attributed his inability to sleep to his pain. His in-service examiners, therefore, concluded that knee joint pain caused the Veteran to wake at night. In March 2010, the Veteran had unicompartmental knee joint replacement, and he indicated it made his knee pain more manageable. However, his sleep problems remained and he sought a sleep study. The Veteran received a VA examination in November 2011, and the examiner noted a July 2011 diagnosis of obstructive sleep apnea. The Veteran reported symptoms of snoring and awakening with respiratory problems. Based on the results of the examination, the examiner found that sleep apnea was less likely than not incurred in or caused by service. She reasoned that it had no specific relationship to the Gulf War and was a disease with a clear and specific etiology. The Veteran is competent to report these observed symptoms, as they are within the realm of his personal experience and are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-70 (a layperson is competent to report on that of which he or she has personal knowledge). The Board finds that the reports of these symptoms are credible. The Veteran received another VA examination in January 2012, and the examiner found that there were no medical records that mentioned that the Veteran ever complained of symptoms suggestive of sleep apnea while in service, such as snoring, respiratory difficulties or witnessing sleep apneas. While the records mentioned knee pain which affected the Veteran's sleep, the examiner found that there was no association of obstructive sleep apnea with knee pain. As such, she concluded that his sleep apnea was less likely than not incurred in or caused by service. A fellow serviceman submitted a statement in March 2012 and indicated that he served with the Veteran from January 2006 until February 2009. He stated that the Veteran was a dedicated and responsible service member who saw his performance affected at times by insufficient sleep. The serviceman indicated that he also had sleep apnea, so it was easy for him to recognize the symptoms and the impact of the Veteran's lack of sleep. Another serviceman submitted a statement in March 2012 and indicated that he served with the Veteran from January 2006 until the time of his retirement in 2009. He recalled that, on several occasions, the Veteran appeared tired and worn down. When he asked the Veteran whether he was getting enough sleep, the Veteran stated that he felt exhausted and had morning headaches much like a hangover, but he had not consumed any alcohol. The serviceman further indicated that, during the three years they served together, the Veteran continually had memory lapses and had a difficult time concentrating on simple tasks. The Veteran also seemed very fatigued; the serviceman recounted that, from time to time, he would notice the Veteran fall asleep at his desk. The Board finds the November 2011 and January 2012 VA examinations to be of diminished probative value. The November 2011 examination did not consider the Veteran's statements concerning his inability to sleep after his knee surgery, and the January 2012 examination based its negative nexus opinion primarily on the lack of medical records in service. However, a lack of contemporaneous medical records does not serve as an "absolute bar" to a service connection claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The Veteran has submitted competent and credible evidence describing symptoms of snoring and apneic episodes during service. As such, there is persuasive lay evidence demonstrating that the Veteran's symptoms began in service. Although these symptoms from service cannot with medical certainty be attributed to the Veteran's current sleep apnea, the Board finds that the evidence is nonetheless in equipoise as to whether the Veteran's condition had its onset in service. Therefore, affording the Veteran the benefit of the doubt, service connection for sleep apnea is warranted. ORDER Service connection for sleep apnea is granted. REMAND The Veteran contends that his degenerative joint disease of the cervical spine is a result of his time in service. Specifically, the Veteran submitted correspondence in March 2012 indicating that he believed his neck arthritis was due to thousands of hours of wearing full body armor and a Kevlar helmet, completing over 120 high altitude free-falls, and completing over 50 static-line parachute jumps. Additionally, the Veteran indicated that during training, he was required to carry a boat on his head with five other men. During his April 2012 VA examination for his neck and left hand numbness, the examiner found that the Veteran had no history of neck injury to suggest any arthritic changes were post-traumatic in nature. Furthermore, the left upper extremity numbness was likely cubital tunnel syndrome related to nerve compression at the elbow, not the neck. The examiner, however, did not address the Veteran's lay statements with regards to his in-service experiences. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Accordingly, the Board finds that the April 2012 VA opinion, with regard to the Veteran's claim for degenerative joint disease of the cervical spine and left hand numbness, is inadequate for evaluation purposes. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to determine the nature and etiology of his degenerative joint disease of the cervical spine and his left hand numbness. The examiner should review the claims folder and note such review in the examination report or an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's degenerative joint disease of the cervical spine had its onset or is otherwise related to the Veteran's military service. The examiner should also provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's left hand numbness had its onset or is otherwise related to the Veteran's military service. Finally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left hand numbness was caused or aggravated by his degenerative joint disease of the cervical spine. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veterans claims for service connection for degenerative joint disease of the cervical spine and service connection for left hand numbness. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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 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. §§ 5109B, 7112 (2012). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs