Citation Nr: 18159683 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 09-26 834 DATE: December 19, 2018 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a respiratory obstruction is denied. REMANDED Entitlement to service connection for sinusitis, including secondary to service-connected sleep apnea is remanded. Entitlement to service connection for allergic rhinitis, including secondary to service-connected sleep apnea is remanded. FINDINGS OF FACT 1. The medical opinion weighs in favor of the causal connection between the Veteran’s sleep apnea and an extended period of ACDUTRA Reserve service, having considered moreover his competently reported symptoms of sleep difficulties during that timeframe. 2. There is no current disability manifested by respiratory obstruction. CONCLUSIONS OF LAW 1. The criteria to establish service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The criteria are not met for service connection for a respiratory obstruction. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to November 1989, and from October 1900 to June 1991. He had substantial additional reserve duty thereafter, which concluded in 2005. In July 2014, the Board remanded the instant issues on appeal for evidentiary development, and they have since returned to be further considered. 1. Entitlement to service connection for sleep apnea. Service connection may be granted for disability from injury or disease that was incurred in or aggravated during active duty service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection is also available for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while on active duty for training (ACDUTRA), or for injury incurred in or aggravated while on inactive duty training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106; 38 C.F.R. § 3.6. Basic requirements for service connection are (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) causal relationship between the disability and service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there was chronic disease diagnosed in service, later episodes are service- connected unless clearly refuted. For non-chronic disease noted in service, continuity of symptomatology from the time of service discharge is required. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (limited continuity of symptomatology as a principle to those specific diseases for which presumptive service connection is available under 38 C.F.R. § 3.309(a)). On the whole, balancing the evidence properly and notating the evidence both in furtherance and against the claim, the Board will grant service connection. Under VA law, where there are divergent medical opinions of record, it is the province of the Board to weigh these opinions, and their underlying bases, and determine which to accept as the most persuasive. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Board may consider and evaluate the underlying basis of an opinion on a medical question, and determine whether to accept such an opinion under the circumstances). First, the Board turns to the January 2013 opinion set forth by a private physician, Dr. D.S., a pulmonary and sleep medicine practitioner. The opinion states as follows: I have been taking care of [the Veteran] since 2005. He has been diagnosed while under my care with obstructive sleep apnea syndrome. This was based on a sleep study done in 2005 which revealed an apnea / hypopnea index of 28 events per hour. He went on to have a CPAP titration and has been on home nasal CPAP since that time and has tolerated is very well. It has made a big impact on his quality of life, and he has much more energy. As you know form your records, [the Veteran] served in the Reserves from 1990 through 2005. During his years in service, he had symptoms of snoring, as well as daytime fatigue. It is well known that patients have had sleep apnea for many, many years prior to their being definitively diagnosed with a sleep study. It is more likely than not that [the Veteran] had sleep apnea during his time in the Reserves. A sleep study performed during the years between 1990 and 2005 could easily have demonstrated sleep apnea. Therefore, I would advocate on his behalf that he had sleep apnea during his time of service, and I would strongly endorse the idea that [the Veteran] should be service-connected for this diagnosis. The Board finds the foregoing significantly persuasive, this given that it takes into account the Veteran’s competent reported history of sleep issues, snoring, and daytime fatigue during his service, not to mention the highly reasonable probability that statistically a sleep apnea condition would have had onset several years prior, thereby overlapping with service. Certainly, the Veteran had ACDUTRA at selected times during the 1990s and early 2000s. He was for several years a Reserve Duty officer, as service personnel records do reflect. Overall, there is definitive, sufficiently supported, and sufficiently probable linkage to service inherent in this opinion, to assign probative weight. In contrast there is an April 2016 VA medical opinion and examination addendum, which found that sleep apnea was less likely than not related to service. This finding encompassed that actual service treatment records (STRs) had no notation of sleeping difficulties, reported or observed, and that the ACDUTRA period apparently was too limited in time period to warrant any connection to service. The Board ultimately gives greater probative weight to the January 2013 private practitioner’s opinion, finding that the Veteran had enough of a continuous timeframe of ACDUTRA as a reserve officer, and which personnel records and reviews readily document, that his sleep apnea symptoms as competently reported, could have plausibly manifested therein. At very least, the evidence is in relative equipoise in this matter, upon the definitive issue of causation. Under said circumstances, VA’s benefit-of-the-doubt doctrine requires that the claimant will prevail. Accordingly, the claim service connection for sleep apnea is granted. 2. Entitlement to service connection for a respiratory obstruction. Based upon its evidentiary review, the Board finds that the claim for service connection for a respiratory obstruction must be denied. In describing the basis for the underlying claim, by his October 2007 statement the Veteran indicated that the respiratory obstruction for which he was seeking to demonstrate entitlement to service connection, was “due to the same conditions as stated in my claim for rhinitis, I have also been diagnosed with allergies to dust and mold and borderline asthmatic.” There was no specific statement or averment of a respiratory obstruction as being the condition for which service connection was filed. Upon VA examination more recently in April 2016, the clinical findings were that the Veteran did not have any form of respiratory condition (apart from already diagnosed sinusitis, rhinitis and sleep apnea). Further notated at the conclusion of the report was that the Veteran complained of subjective “wheezing with exercise.” Review of medical records indicated that the Veteran was evaluated by a pulmonologist on September 12, 2005, no respiratory diagnosis was documented. He had a PFT on October 23, 2007 which was normal except for “mild restriction” related to obesity. A physical examination was normal. Spirometry performed showed no evidence of obstruction. There was no evidence of respiratory obstruction for the Veteran. No pathology was found. Given the foregoing, the Board will conclude that there no current disability for VA purposes, with regard to any respiratory obstruction. A present disability indeed is the veritable cornerstone of a claim seeking VA disability compensation. See generally, Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (“Compensation for service-connected injury is limited to those claims which show a present disability.”); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). That not being shown, the claim is being denied. The most probative evidence of record does not show that the Veteran has respiratory obstruction as the actual component of his current pathology. The competent evidence does not support a favorable outcome, and VA’s benefit-of-the-doubt doctrine is not applicable under the aforesaid circumstances. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis, including secondary to service-connected sleep apnea is remanded. 2. Entitlement to service connection for allergic rhinitis, including secondary to service-connected sleep apnea is remanded. Given the recent grant of service connection for sleep apnea, and that this condition is substantively similar to the other averred respiratory disorders at issue, it would be beneficial to obtain a clear opinion on secondary service connection –– namely, whether now service-connected sleep apnea caused or chronically aggravated either allergic rhinitis or sinusitis. See 38 C.F.R. § 3.310(a) (2018). Moreover, given that the Veteran has competently averred incidents of hazardous chemical exposure during service at the time of the Persian Gulf War, including have often had fuel spills occur while working at a fueling station, that factor also must be considered in regard to whether to establish service connection on a direct basis. The matters are REMANDED for the following action: 1. Obtain the Veteran’s most recent VA outpatient treatment records and associate them with the electronic claims folder. 2. Schedule the Veteran for an additional examination regarding claimed sinusitis and allergic rhinitis. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner should initially confirm diagnoses of both sinusitis, and allergic rhinitis during the appeal period. The examiner should provide opinions as to the following: a. Whether the diagnosed disorders are at least as likely as not (50 percent or greater probability) incurred in service or are otherwise etiologically related to service, based on available documentation, and the Veteran’s averred hazardous exposure while the Persian Gulf including to sandstorms, oil well fires, and inhalation of fumes from a nearby fuel dispensary. b. Whether it is at least as likely as not that the Veteran’s service-connected sleep apnea caused his sinusitis or rhinitis. c. Whether it is at least as likely as not that the Veteran’s service-connected sleep apnea aggravated his sinusitis or rhinitis beyond its natural progression. The examiner must provide a fully reasoned and complete rationale for all opinions offered. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. 3. Review the claims file. If the directives specified in this remand have not been implemented, take appropriate corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then readjudicate the claims remaining on appeal in view of all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel