Citation Nr: 18157380 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 17-01 374 DATE: December 13, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED Entitlement to service connection for residuals of melanoma of the right ear is remanded. FINDING OF FACT The Veteran’s OSA is attributable to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to June 1993. Service Connection – OSA Legal Criteria Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 38 C.F.R. § 3.303(d) states “[p]ostservice initial diagnosis of disease. Service connection may 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.” Analysis The Veteran has contended, essentially, that he had OSA during his active service that was diagnosed following his separation from active service. The earliest reference to sleep apnea in the evidence of record appears to be a February 2015 private medical record from Dr. V.V. This note stated that the Veteran was with his “wife today [and] she is concerned about his sleep [and] snoring [and] fatigue” and under the Plan heading referenced was seeing a sleep apnea specialist. A May 13, 2015 record from Dr. W.R., who was noted in the record to be Board Certified in Internal Medicine, Pulmonary Disease, Preventive Medicine and Public Health, and Sleep Medicine, stated that the Veteran “has a long history of snoring and his wife confirms frequent and prolonged apnea episodes.” It was noted that “I feel this patient has high probability for sleep apnea” and also that a sleep study would be scheduled. A May 14, 2015 sleep study report noted severe OSA and a May 15, 2015 note from Dr W.R. stated that “[s]leep study reveals severe sleep apnea” and noted an assessment of OSA. The Veteran submitted multiple lay statements regarding his OSA claim. In a May 2016 statement accompanying his notice of disagreement (NOD), the Veteran stated that “[a]t the time…of my separation from military service, sleep apnea was not a commonly diagnosed condition and as such, was not assessed during my military career” and that “[s]ince my separation occurred prior to the awareness of sleep apnea, the absence of any documentation regarding sleep apnea in my [United States Air Force (USAF)] medical records is understandable.” On his December 2016 VA Form 9, the Veteran stated regarding sleep apnea that “it would be impossible for there to be complaints of, or treatment for, a condition that was unknown to me and the USAF at that time” and that “I could not complain about something I didn’t know about, nor could I be treated for something the attending physicians did not know about.” The Veteran provided similar contentions in his February 2017 statement. The Veteran’s wife also provided similar contentions in a May 2016 statement. The Veteran also stated in his May 2016 statement that “[d]uring my VA Compensation and Pension examination [in February 2016, Dr. H.D.] stated he would recommend VA approve my claim of sleep apnea.” The Veteran provided similar contentions on the December 2016 VA Form 9 and in his February 2017 statement and his wife did as well in her May 2016 statement (she noted she accompanied the Veteran to the VA examination). Of record is a February 2016 Sleep Apnea Disability Benefits Questionnaire (DBQ) completed by Dr. H.D., which noted a diagnosis of OSA. Also of record was a negative opinion regarding secondary service connection and allergies. The Board notes that no VA opinion is of record, or appears to have been requested, regarding direct service connection, to include from Dr. H.D. The Veteran, however, is competent to report what Dr. H.D. told him. Also of record are July 2015 lay statements from individuals who served in the military with the Veteran. The two statements, from M.L. and J.S., were substantively the same. They both described during the time period from 1989-1992 to observing the Veteran sleep and stated that “[d]uring his sleep, he snored terribly, seemed to gasp, and appeared to struggle for breath” and that “[r]ather quickly I realized that if I were going to get any sleep, I had to go to sleep before [the Veteran] as his snoring and noises would be so loud and annoying no one could sleep.” It was stated that “I witnessed this situation every time we were together in the field.” As referenced above, the Veteran’s wife submitted a May 2016 statement. She referenced being married to the Veteran since November 1972 and stated that they had been “living together since that time.” She stated that “for the majority of our lives together [the Veteran] has snored, but this has progressed to where he was actually gasping and appeared to stop breathing” and that “[t]his condition has worsened since our reassignment to Brooks [Air Force Base], Texas in December 1985.” She also stated that “many of his military friends have commented that his snoring, gasping, and breathing always disturbed them when bunking in the same room during deployments and field exercises.” The Veteran’s wife additionally stated, with reference to medical records, that she “believe[s] my husband has had severe sleep apnea since 1985, but it was not diagnosed until 2015...I believe this is a long standing condition that was not diagnosed…until well after separation from the USAF.” On his December 2016 VA Form 9, the Veteran stated, with citation to the lay statements from his fellow soldiers and his wife, that “prior to my diagnosis…I snored terribly, gasped, and made it hard for anyone nearby to sleep i[f] I fell asleep first.” As noted, no VA opinion is of record regarding direct service connection. The Veteran, however, submitted a May 2016 opinion from Dr. W.R. The opinion stated that the Veteran: was diagnosed with sleep apnea May 2015 but clearly has symptoms which were present for many years and likely all his adult life. [Veteran] is advised that sleep apnea is usually present during most of adult life and that the sleep apnea symptoms can be increased with nasal congestion from allergies and weight gain. Upon review, the Board finds that entitlement to service connection for OSA is warranted. The only competent opinion of record that addressed the onset of the Veteran’s OSA was the May 2016 opinion from Dr. W.R. This opinion referenced that the Veteran had symptoms of OSA that “were present for many years and likely all his adult life. [Veteran] is advised that sleep apnea is usually present during most of adult life.” While not clearly documented, Dr. W.R.’s opinion was presumably premised on lay evidence provided by the Veteran and his spouse that, as discussed above, described the symptoms observed during his active service. As noted above, the Veteran served on active duty from May 1972 to June 1993 and during this time his age ranged from 18 to 39 years old. Resolving any reasonable doubt in the Veteran’s favor, the Board will construe the May 2016 reference by Dr. W.R. to the Veteran having OSA symptoms “likely all his adult life” to encompassing his active service period when he was 18 to 39 years old and therefore indicating that OSA had it onset during the Veteran’s active service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (stating that “[w]hen, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin…such doubt will be resolved in favor of the claimant”). There is no competent evidence contrary to the May 2016 opinion and the Board finds it to be the most probative evidence of record regarding the onset of the Veteran’s OSA. In sum, the Board finds that the Veteran’s OSA is attributable to his active service. The Board accordingly concludes that the criteria for entitlement to service connection for OSA have been met and, to this extent, the Veteran’s claim is therefore granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS FOR REMAND Service Connection – Residuals of Melanoma Upon review, the Board finds that remand is required for a VA examination and opinion. The Veteran filed a claim in March 2017 for melanoma. He submitted private medical records that included a September 2016 note from Dr. M.S. that noted upon examination “[l]esion on the right earlobe – [p]resent for three months. Biopsy of lesion [in August 2016] revealed melanoma in situ.” It was noted that the Veteran underwent Mohs surgery and that the carcinoma was removed. The Veteran referenced in a March 2017 statement that a “full body assessment” subsequent to the September 2016 removal of his right ear melanoma “found no other lesions.” The Veteran’s contention has been that, essentially, his melanoma was the result of his active service due to his exposure to ultraviolet radiation from the sun. In a March 2017 statement accompanying his claim, he referenced the various geographic locations of his active service and stated that “[m]y duties were largely outdoors to include temporary duty…and numerous field exercise” and that “[t]he typical headgears was a ball cap or a flight cap.” He also stated that “I s[p]ent a good part of my 21 years of service out doors with either a ball cap or a flight cap…During that time my ear lobes were unprotected and exposed to sunlight.” The Veteran further stated that “[m]y physicians have stated that exposure to ultra violet radiation is likely the cause of my melanoma, my duties certainly exposed me to sunlight, the duty uniforms offered minimal protection, and melanoma typical takes many years to manifest itself.” The Veteran provided similar contentions in his June 2017 NOD and on his August 2017 VA Form 9. On the June 2017 NOD, he stated that “according to the American Cancer Society, melanoma may take decades to develop.” The Veteran has not been afforded a VA examination regarding his melanoma claim. Under 38 U.S.C. § 5103A(d), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that an event, injury or disease occurred in service; (3) an indication that the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Upon review, the Board finds that the evidence of record meets the outlined standard for a VA examination and additionally raises medical issues that the Board is not competent to address. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, remand is required for a VA examination and opinion, as outlined further in the remand directives below. The matter is REMANDED for the following action: Afford the Veteran a VA examination with respect to his melanoma claim. The examiner must provide an opinion addressing the following: (a.) What residuals exist related to the Veteran’s melanoma of the right ear. (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s melanoma of the right ear is caused or aggravated by any in-service event or injury, to include exposure to ultraviolet radiation from the sun. While review of the entire claims folder is required, attention is invited to the following: (a.) The Veteran’s lay statements that, essentially, described his in-service sun exposure and lack of protection from such for his ears. See March 2017 Statement, June 2017 NOD, August 2017 VA Form 9. (b.) The duration of the Veteran’s active service (from May 1972 to June 1993). (c.) The Veteran’s report that, essentially, the only melanoma that he has had was on an area of the body that was uncovered during his active service – the right ear lobe. See March 2017 Statement (referencing that a “full body assessment” subsequent to the September 2016 removal of his right ear melanoma “found no other lesions”). (d.) An April 1975 STR Examination Report, which noted “sun poisoning [times] 1.” (e.) A June 1973 STR which noted a rash on the Veteran’s arms and stated “sun[,] had gotten a good tan – peeled [and] shortly thereafter this start up[,] but other areas have been exposed [and] not reacted.” (f.) The Veteran’s report that “[m]y physicians have stated that exposure to ultra violet radiation is likely the cause of my melanoma.” See March 2017 Statement. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Counsel