Citation Nr: 18140550 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 16-00 048 DATE: October 4, 2018 ORDER New and material evidence has been received to reopen a claim for service connection for acne vulgaris. Service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for a skin condition (acne rosacea and blepharitis) is remanded. Entitlement to an initial compensable rating for a scar post lumbar spine surgery is remanded. FINDINGS OF FACT 1. A January 2000 rating decision denied entitlement to service connection for acne vulgaris. In December 2001, the RO reopened the Veteran’s claim for entitlement to service connection for acne vulgaris, which was again denied in a February 2002 rating decision. The Veteran did not appeal those decisions, and new and material evidence was not received within one year of notice of their issuance. 2. Evidence added to the record more than one year after the February 2002 rating decision had not been previously considered and relates to an unestablished fact necessary to substantiate the Veteran’s claim. 3. The Veteran’s obstructive sleep apnea had its onset in service. CONCLUSIONS OF LAW 1. The January 2000 and February 2002 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for acne vulgaris. 38 U.S.C § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1977 to October 1998, including service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Board remanded for issuance of a statement of the case (SOC) the issues of entitlement to service connection for (i) obstructive sleep apnea and (ii) a skin condition (then characterized as rosacea). The Board also remanded for additional development the issues of entitlement to service connection for hypertension, hearing loss, and a left hip disability. As the requested development on these issues has not yet been completed, these matters are not presently before the Board. Service connection for acne vulgaris was denied in final January 2000 and February 2002 rating decisions. The Veteran asserts that his present skin condition, to include acne rosacea, is related to his skin condition during active service. See October 2016 Veteran Statement (“all my rosacea medical history is in my records since [the] late 70’s… until I retired.”). The Board finds that the instant claim is the same as the 2000 and 2002 claims, requiring new and material evidence, as the current appeal is based on the same symptoms previously reported by the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009) (the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits). New and Material Evidence In January 2000, the RO denied the Veteran’s claim of entitlement to service connection for acne vulgaris. The RO reopened that claim on its own initiative in December 2001 to attempt additional development pursuant to the Veterans Claims Assistance Act. In February 2002, the RO again denied the Veteran’s claim. The Veteran did not appeal either determination, nor was new and material evidence received within one year of the issuance of either decision. Thus, the January 2000 and February 2002 rating decisions are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A final claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. Evidence associated with the record more than one year after the February 2002 rating decision includes updated VA and private treatment records, VA examinations in December 2013 and November 2015, and the testimony of the Veteran and his wife at the May 2015 Decision Review Officer (DRO) hearing. Because this evidence had not been previously submitted and because it relates to unestablished facts necessary to substantiate the Veteran’s claim, it is considered new and material, and the claim for service connection for acne vulgaris is reopened. Service Connection for Obstructive Sleep Apnea The Veteran asserts that his obstructive sleep apnea had its onset in service, and that his condition was not diagnosed during his active duty because it was not widely recognized at that time. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires evidence showing (1) a present disability; (2) an 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, 1166-7 (Fed. Cir. 2004). The Veteran’s service treatment records (STRs) reflect treatment for chronic sinus problems, and he is service-connected for that disability. His STRs do not show complaints of chronic sleep problems, although they do show reports of test-related anxiety in November 1990. His STRs consistently show overweight body mass index (BMI) measurements since the late 1980s. See STRs. The Veteran was referred to Dr. N.P., a sleep expert, by his primary physician in 2012. See January 2013 Veteran Statement. Dr. N.P. diagnosed the Veteran with obstructive sleep apnea following an August 2012 sleep study. The Veteran presented for follow-up studies in October 2012 and January 2013 and for BiPAP titration, which provided symptom relief and improved sleep quality. Dr. N.P.’s notes show that the Veteran weighed 220 lbs at the time of his sleep studies. See March 2015 Dr. N.P. Opinion and Dr. N.P. Treatment Notes. The Veteran submitted a statement in January 2013 reporting sleep issues since he was in the military. He stated that he always mentioned his sleep problems to his physicians during active duty, but that these clinicians consistently attributed his sleep problems to stress from work and deployments. He stated that he has had non-restful sleep most nights for the past 30 years, and that his wife has woken him up and told him that he had stopped breathing. See January 2013 Veteran Statement. The Veteran’s wife, J.S., submitted a statement in January 2013 describing her observations of the Veteran’s sleep history. J.S. stated that she has observed the Veteran’s sleep since about 1987, and that they were married in 1989. She reported that he has always snored loudly during sleep, and that she has repeatedly observed him stop breathing during sleep. She reported that she told him to address this during his physicals, and that when he did the physicians said his sleep problems were due to the stressful environment of the military. J.S. reported that at times she had to sleep in a different bedroom due to his sleep issues, and that she frequently observed that the Veteran was tired during the day. The Veteran and J.S. testified at a May 2015 hearing before a DRO. The Veteran testified that his sleep problems began during active duty, in the 1980s. Hearing Transcript at 4-5. He testified that he reported these problems to the doctor, but that they attributed his sleep problems to occupational stress as sleep apnea was not widely known at the time. Id. at 5, 13. J.S. testified that her husband’s snoring and restless sleep was so disruptive that it impacted her rest and that she frequently slept in a different room, and that when she slept in the same room she had to awaken him on several occasions. Id. at 5-6, 8-9. She testified that after “bad nights of sleep,” the Veteran was frequently tired during the next day and irritable. Id. at 6. The Veteran testified that during active duty he assumed that snoring and difficult sleep was something he had to live with, and that he tried over-the-counter medicines but was averse to taking prescriptions due to his sensitive military and civilian employment. Id. at 8-10. The evidence of record establishes that the Veteran has a current diagnosis of obstructive sleep apnea. See March 2015 Dr. N.P. Opinion. J.S. has competently and credibly testified to observing the Veteran’s snoring, restless behavior, and cessation of breathing during sleep, including during the Veteran’s active service. See May 2015 Hearing Transcript at 5-6, 8-9. Thus, the first and second elements of service connection have been satisfied, and the appeal turns on whether a nexus exists between the Veteran’s active service and his sleep apnea. The record contains conflicting medical opinions regarding the etiology and nature of the Veteran’s sleep condition. In favor of the claim is the March 2015 opinion of Dr. N.P. Against the claim are the opinions of the December 2013 and November 2015 VA examiners. Dr. N.P. opined that it is as at least as likely as not that the Veteran’s obstructive sleep apnea had its first manifestations during his active duty. He stated that the Veteran has a high arched palate, which is a risk factor for obstructive sleep apnea independent of any change in body habits. He noted that the Veteran reported sleep difficulty since the mid-to-late 1980s, that the Veteran complained of daytime fatigue and restless sleep since that time, and that his wife reported that she observed the Veteran’s loud snoring and gasping arousals since she they first met in 1987. Dr. N.P. also noted the Veteran’s report of persistent symptoms since active duty, and that following BiPAP titration the Veteran has experienced an improvement in daytime fatigue and sleepiness. See March 2015 Dr. N.P. Opinion, Dr. N.P. Treatment Notes. Dr. N.P.’s opinion is entitled to substantial probative weight. He specializes in sleep and pulmonary medicine, and his opinion as to the etiology of sleep conditions is informed by his experience. Moreover, Dr. N.P. is the Veteran’s regular sleep clinician and has observed his condition over time. Critically, Dr. N.P. was informed of the relevant facts of this case, and his opinion properly accounts for the competent and credible statements of the Veteran and J.S. The December 2013 VA examiner opined that it was less likely than not that the Veteran’s obstructive sleep apnea was the result of his active service. The examiner noted that while the Veteran’s wife reported snoring during active service, the Veteran was being treated for a sinus condition in 1988, and he did not present to medical authorities for a sleep evaluation. The examiner also noted that a history of snoring is not associated with obstructive sleep apnea in 90 percent of cases. He also reasoned that a causal link with active service was unlikely because the Veteran sought his initial sleep study after his snoring worsened and became associated with periodic breathing “in the past couple years.” The examiner also noted that the Veteran weighed 220 lbs during a January 2013 sleep study. See December 2013 VA Examination. In a separate examination performed the same day as the Veteran’s sleep examination, the examiner found the Veteran to be a credible historian. See December 2013 Hemorrhoids Disability Benefits Questionnaire. The December 2013 VA examiner’s opinion is entitled to little probative weight, as it does not address much of the relevant evidence of record. While the examiner noted that the snoring reported by J.S. could be related to the Veteran’s 1988 sinus infections, he did not address J.S.’s report of the Veteran’s snoring during the rest of the time she had known him during active duty, nor did he explain why the Veteran’s obstructive sleep apnea was not related to his service-connected sinus condition. Although the examiner noted that the Veteran did not report sleep problems to medical authorities, the Veteran stated that he did report these problems but that the military clinicians discounted them, which is supported by his STRs. See January 2013 Veteran Statement, May 2015 Hearing Transcript at 4-5 (Veteran reported symptoms and was told he was not sleeping due to stress), December 2015 Attachment to VA Form 9 (reported sleep problems diagnosed as anxiety or stress), November 1990 STRs (Veteran reports of chronic test-taking anxiety). Moreover, while the examiner noted that snoring is not related to obstructive sleep apnea in 90 percent of cases, he did not address the Veteran’s reports of daytime fatigue, or J.S.’s reports of the Veteran’s restless sleep, cessation of breathing, and daytime fatigue. See January 2013 J.S. Lay Statement (“[c]ountless times when his loud snoring wakes me up I have watched him and noticed that he stopped breathing for seconds”), Hearing Transcript at 6 (J.S.’s statement that due to Veteran “snoring like crazy and moving around in bed” she “had to wake him up on several occasions”) Hearing Transcript at 4-5 (Veteran began experiencing daytime fatigue in 1980s). Furthermore, while the examiner reasoned that the Veteran had only recently reported for a sleep study based on observed symptoms, J.S. reported that the Veteran’s condition had progressively worsened. See January 2013 J.S. Lay Statement. Moreover, the Veteran’s 2012 referral for a sleep study based on observed symptoms is consistent with a fluctuation of the Veteran’s weight, an increase in the severity of his symptoms, or other unknown reason, and does not necessarily imply that the Veteran’s obstructive sleep apnea developed at this time. The Board observes that the Veteran’s wife testified she would sleep in a different bedroom from the Veteran because she worked and needed to rest, and that she stopped working around 2011. See Hearing Transcript at 5-6. The November 2015 VA examiner also opined that it was less likely than not that the Veteran’s obstructive sleep apnea was incurred in or caused by the Veteran’s active service. He noted that while the Veteran reported at the December 2013 VA Examination that he sought a sleep study following observed apnea, the Veteran’s wife stated that she observed the Veteran’s snoring since she first met the Veteran in the late 1980’s, but was vague regarding the development of observed apneas. The examiner also noted that a high hard palate was not listed as a risk factor for developing obstructive sleep apnea based on a review of UpToDate’s “Overview of obstructive sleep apnea in adults,” but that obesity (BMI above 30) is a risk factor. The examiner noted that while the Veteran had been overweight during active duty, he is now obese, as on February 2015 he had a weight of 231 lbs and a BMI of 29.7. He concluded that the Veteran’s obstructive sleep apnea was more likely that not related to his increased BMI than his high arched palate, and thus more likely than not a development since active duty. He also opined that the Veteran’s sinusitis and high arched palate are most likely the cause of his snoring, and that they are unrelated to his obstructive sleep apnea. See November 2015 VA Examination. The November 2015 VA examiner’s opinion is not entitled to any probative weight, as it draws unsupported conclusions from incorrect facts. The examiner stated that the statements of the Veteran and his wife were not consistent, because the Veteran reported that he sought a sleep study following “development of observed apnea in 2011-2012,” while his wife reported that the Veteran had snored since the late 1980s but was vague regarding gasping for breath. However, as discussed above, J.S. stated that the Veteran’s condition progressively worsened and testified that the Veteran exhibited restless sleep throughout their marriage. See January 2013 J.S. Lay Statement, Hearing Transcript at 4-6. Moreover, nothing in the record suggests that this was the first instance of observed apnea. To the contrary, J.S.’s statement as to when she observed gasping is consistent with observing this symptom throughout the time she has known the Veteran, as well as with the Veteran’s reports of consistent sleepiness and low energy during service. See id. While the examiner stated that he found reports that a high arched palate is linked with snoring, but not directly linked to obstructive sleep apnea, there is no indication that he performed a comprehensive literature search or that he has the same depth of subject-matter knowledge as a sleep specialist. Moreover, the examiner’s reasoning that the Veteran’s obstructive sleep apnea is most likely related to his weight does not support a link between the Veteran’s obstructive sleep apnea and his active service. Notably, the examiner explained that obesity is a risk factor for sleep apnea, and that the Veteran was overweight during service, but in February 2015 he weighed 231 lbs and had a BMI of 29.7. The Board notes that a BMI of 29.7 does not constitute obesity. Furthermore, at the time the Veteran was diagnosed with obstructive sleep apnea he weighed 220 lbs, which is similar to his weights at the times during his active service that he and J.S. reported sleep disturbances. See STRs (weight 206 lbs June 1987, 211 lbs June 1988, 210 lbs May 1989, 208 lbs July 1991, 218 lbs June 1993, 218.5 lbs November 1994, 215 lbs June 1995, 216 lbs August 1996, 218 lbs January 1997, 213 lbs May 1998); cf. August 1977 Enlistment Physical (weight 161 lbs). Finally, the examiner’s conclusion that the Veteran’s sinusitis is related to his snoring but not his obstructive sleep apnea lacked any rationale, and therefore is not probative. Thus, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s obstructive sleep apnea had its onset during the Veteran’s active service. Accordingly, the Board concludes that the criteria for service connection for obstructive sleep apnea have are met. See 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND Service Connection for a Skin Condition The Veteran asserts that the skin conditions affecting his face and neck are the result of exposure to difficult climates during his many deployments, including his deployment to Saudi Arabia after the first Persian Gulf War. See April 2014 Notice of Disagreement (NOD). He should be afforded a Gulf War examination to address his symptoms, as he has requested that his claim be considered under the provisions of 38 C.F.R. § 3.317 and his service records reflect receipt of the Southwest Asia Service Medal. See DD Form 214, Hearing Transcript at 20. The Agency of Original Jurisdiction (AOJ) should first obtain complete service personnel records listing all of his deployments. Initial Compensable Rating for Scar Post Lumbar Spine Surgery The Board liberally construes the Veteran’s April 2014 correspondence as a timely NOD with the March 2014 rating decision to the extent it awarded an initial noncompensable rating for his lumbar spine surgery scar. See 38 C.F.R. § 20.201(as in effect prior to March 24, 2015); April 2014 NOD. As the AOJ has not yet issued a statement of the case (SOC) on this issue, one should be provided on remand. See 38 C.F.R. § 19.9; Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: 1. Obtain the Veteran’s service personnel records. 2. Obtain all outstanding VA treatment records. 3. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 4. After the above development has been completed, schedule the Veteran for a VA Gulf War examination with an examiner other than the November 2015 VA examiner addressing the etiology of the Veteran’s skin disabilities. The claims file should be made available to and should be reviewed by the examiner. The examiner is asked to address each of the following questions: (a) Please state whether the symptoms of the Veteran’s skin condition(s) are attributable to a known clinical diagnosis. If diagnoses of blepharitis and acne rosacea are not warranted, please reconcile this finding with the diagnoses of the same of record. (b) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern is either a diagnosable chronic multi-symptom illness with a partially explained etiology ((b)(2) above), or a disease with a clear and specific etiology and diagnosis ((b)(3) above), then please opine as to whether it is at least as likely as not (50 percent or greater probability) that such condition had its onset in service or is otherwise related to service, to include as a result of presumed environmental exposures during the Veteran’s service in Southwest Asia, or other climatic or environmental exposures during his other deployments, including sun exposure for more than 20 years of service. In addressing these questions, the examiner should discuss: (i) the Veteran’s medical records showing evidence of chronic solar exposure; (ii) the March 2013 Dr. J.V. Treatment Note (noting chronic solar skin damage); the October 2016 Veteran Statement (reporting that December 2015 medical examiner stated that Veteran’s rosacea is service-related); and (iii) 2015-16 Dr. J.M. Treatment Notes (diagnosing blepharitis associated with rosacea). A complete rationale must be provided for all opinions. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 4. Separately, issue a Statement of the Case for the issue of entitlement to an initial compensable rating for a scar post lumbar spine surgery. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel