Citation Nr: 18156092 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-58 647A DATE: December 6, 2018 ORDER Entitlement to a rating in excess of 50 percent for sleep apnea is denied. REMANDED Entitlement to service connection for residuals of a nasal scar is remanded. FINDING OF FACT The most probative evidence of record shows that the Veteran's sleep apnea is not characterized by chronic respiratory failure with carbon dioxide retention or cor pulmonale or required tracheostomy at any time during the pendency of the appeal. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for sleep apnea have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. § 3.102, 3.321, 4.97, Diagnostic Code 6847 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served the United States Navy from June 1968 to June 1972. This matter comes to the Board of Veterans' Appeals (Board) from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. 1. Entitlement to a rating in excess of 50 percent for sleep apnea Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran’s service-connected sleep apnea currently is rated as 50 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6847. The Veteran filed an increased rating claim in June 2016, following the award of service connection in March 2014, and therefore, the Board will consider the evidence dated back to June 2015. Diagnostic Code 6847 provides ratings for sleep apnea syndromes (obstructive, central, and mixed). A zero percent rating is warranted for sleep apnea that is asymptomatic but with documented sleep disorder breathing. A 30 percent rating is assigned for sleep apnea that is persistent, with day-time hypersomnolence. Sleep apnea that requires the use of a breathing assistance device, such as continuous airway pressure (CPAP) machine, warrants a 50 percent rating. Sleep apnea that manifests chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy, warrants a 100 percent rating. 38 C.F.R. § 4.97. Here, the medical evidence does not demonstrate a diagnosis of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or a history of a tracheostomy related to sleep apnea at any time during the appeal. A July 2016 VA examiner noted the Veteran utilized CPAP machine one-to-two hours per night but did not require continuous medication or a breathing assistance device. An August 2016 VA primary care note shows the Veteran had good respiratory effort. In a November 2016 letter, a VA provider reported the Veteran could not tolerate the CPAP mask and continued to suffer from excessive daytime somnolence. The VA provider advised the Veteran to consider consultation with ENT for evaluation of alternative surgical treatment. In this respect, an additional November 2016 VA treatment record indicates the Veteran was hesitant to undergo surgery, and the evidence does not show he pursued such thereafter. Treatment records dated in December 2016 and January 2017 indicate the Veteran could not tolerate the CPAP but that medication had completely improved his symptoms. Neurology notes dated in March 2017 and June 2017 indicate physical examination was unchanged with only diagnoses of sleep apnea, difficulty in sleep maintenance, excessive daytime sleepiness, and poor tolerance of sleep apnea aids. Again, the medical evidence does not reflect chronic respiratory failure with carbon dioxide retention or cor pulmonale or that the Veteran’s sleep apnea required tracheostomy. Accordingly, the Board finds the criteria for a rating in excess of 50 percent have not been met at any time during the appeal period. 38 C.F.R. § 4.97. Moreover, the record indicates the Veteran’s adverse symptomatology has been substantially the same during the pendency of the appeal, and therefore, the Board finds staged ratings are not warranted. Fenderson, supra. REASONS FOR REMAND Entitlement to service connection for residuals of a nasal scar is remanded. The Veteran and his representative assert that the Veteran is entitled to service connection for residuals of a nasal scar due to an injury the Veteran suffered during his service in the Navy. Notably, the Veteran is already service-connected for residuals of nasal fracture, rated as 30 percent disabling, as causally related to such injury. Under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017). In the present case, the record reflects persistent symptoms relating to a nasal scar. In addition, VA has conceded the existence of an in-service incident involving a nasal injury, and the Veteran’s claim is based on a nexus to such incident. As to the Veteran’s lay statements asserting symptomatology, he is competent to convey facts or circumstances and matters that can be observed and described by a lay person. Accordingly, the Board finds new VA examination is warranted to determine the etiology of any nasal scar. The matters are REMANDED for the following actions: 1. Any outstanding VA treatment records should be associated with the electronic file. If no records are available, the electronic file must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the electronic file. 2. After the above development has been completed and all records have been associated with the electronic file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any nasal scar. All studies, tests, and evaluations that are deemed necessary should be conducted. The Veteran’s electronic file, including a copy of this Remand, should be reviewed by the examiner, and the examination report should note such review. The examiner should then: The examiner should provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that any nasal scar originated during, or is etiologically related to, active duty service. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. In addition, VA has already conceded the incurrence of a nasal injury during service. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A complete rationale should be given for all opinions and conclusions expressed. 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. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel