Citation Nr: 18145778 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-16 332 DATE: October 30, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMANDED The issue of entitlement to a rating higher than 20 percent for residuals of a fracture to the left tibia and fibula is remanded. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether obstructive sleep apnea relates to service. CONCLUSION OF LAW Obstructive sleep apnea (OSA) was incurred in service. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had multiple periods of active service between September 1987 and January 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of June 2015 and November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In June 2018, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of the hearing is included in the record and has been reviewed. Entitlement to service connection for obstructive sleep apnea is granted. The Veteran claims that he has obstructive sleep apnea which began during military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). To establish direct service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 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, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this matter, the evidence of record consists of service treatment records (STRs), private and VA treatment records, lay assertions from the Veteran, and medical opinions from private and VA physicians. This evidence documents that the Veteran has sleep apnea. This is noted in a VA examination report dated in April 2015 and in a private report dated in June 2016. The evidence also documents that the Veteran experienced sleep troubles during service. STRs dated in October 2013 – during the most recent period of active service between September 2012 and January 2014 – reference complaints of sleep apnea, the use of a continuous positive airway pressure (CPAP) machine, and a “diagnosis” of sleep apnea. Further, a January 2014 “physician order form” completed by a physician includes a diagnosis of obstructive sleep apnea for which CPAP materials were prescribed. In assessing whether the Veteran experienced apnea symptoms during service, the Board has also considered his lay assertions of record in which he describes experiencing sleep apnea symptoms during active duty between June 2007 and May 2008, and between September 2012 and January 2014. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a lay person is competent to offer evidence regarding observable symptomatology). Indeed, the Veteran was credible in his testimony before the Board with regard to this issue. See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility is determined by the fact finder). Moreover, the evidence is in a state of relative equipoise with regard to whether current OSA relates to the in-service symptoms. Certain evidence indicates that OSA is not related to service. A VA examination report dated in April 2014 states this. This examiner based the finding on a sleep study conducted in 2013, which found that the Veteran did not have sleep apnea. Likewise, the April 2015 VA examiner found OSA unrelated to service. The examiner indicated that the Veteran’s symptoms during service were due to upper airway resistance syndrome. The examiner cited the 2013 sleep study, which was positive for this syndrome but negative for apnea. The examiner also stated that, to alleviate symptoms related to a deviated septum, the Veteran underwent septoplasty and a uvulectomy in the early 2000s – while not on a period of active service. In finding sleep apnea unrelated to service since 2007, the examiner cited this evidence of pre-service breathing difficulty. The examiner also cited a private sleep study dated in January 2015, which found the Veteran with OSA, as the earliest evidence of record of diagnosed OSA. The April 2014 and April 2015 VA opinions are of probative value because each is based on a review of the claims file, an examination and interview of the Veteran, and is explained. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The June 2016 opinion from a private physician is also of probative value. The physician – a sleep specialist who conducted the January 2015 sleep study finding OSA – reviewed the Veteran’s medical history and cited the in-service symptoms, the sleep testing in 2013, the use of CPAP machine during service, and the initial post-service diagnosis of obstructive sleep apnea in January 2015. The examiner stated that the symptoms during service that gave rise to the sleep study in 2013 were identical to those experienced in 2015, at the time of the definitive diagnosis. The examiner stated the in-service symptoms in 2013 were indicative of a “lesser severity” form of sleep apnea. See Bloom, supra. The examiner supported the opinion by stating the following: Considering the fact that sleep testing carries a day to day variation in results for the same individual, where negative or marginal result on first testing have chance of being false negative if repeated, then I’m concluding that [the Veteran] had the diagnosis of OSA in 2013, when he was treated successfully with CPAP leading to resolution of his daytime sleepiness and unrestful sleep complaints. In sum, evidence indicates that the Veteran experienced sleep apnea symptoms during service. A sleep study in 2013 indicated that the Veteran did not then have sleep apnea despite his symptoms, but other medical records dated in 2013 note sleep apnea as a diagnosis. Further, at discharge from service in January 2014, a physician diagnosed the Veteran with OSA and prescribed CPAP material for use. Lastly, each of the medical opinions addressing the claim is probative so, combined, they place the evidence in a state of relative equipoise regarding whether current OSA relates to in-service symptoms. Based on the foregoing, the Board cannot find that the preponderance of the evidence is against the claim. As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt and grant the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The issue of entitlement to a rating higher than 20 percent for residuals of a fracture to the left tibia and fibula is remanded. During the Board hearing, the Veteran asserted that his left lower leg disability involves ankylosis. The disability is currently rated under Diagnostic Code (DC) 5271 of 38 C.F.R. § 4.71a. A finding of ankylosis may justify a higher rating under DC 5270 of 38 C.F.R. § 4.71a. The most recent VA examination of the left leg was conducted in August 2015. The examiner did not comment on whether the Veteran had ankylosis in his left lower leg. Additional medical inquiry should be conducted, therefore. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claim, to the extent possible. Include in the record any outstanding VA treatment records, the most recent of which are dated in February 2017. All records/responses received must be associated with the electronic claims file. 2. Schedule a VA compensation examination to determine the nature and severity of the service-connected left leg disability. The examiner should review the claims folder. In a report, the examiner should comment on whether the Veteran has ankylosis in his left lower leg. See 38 C.F.R. § 4.71a, Diagnostic Code 5270-71 (2018). Please support any opinion provided with a full explanation. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel