Citation Nr: 18100723 Decision Date: 04/19/18 Archive Date: 04/19/18 DOCKET NO. 14-25 410A DATE: April 19, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 2 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran’s OSA was incurred in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from November 1984 to November 1986, and from January 1993 to January 1997. The Veteran also had active duty service from January 1997 to October 2000, for which a discharge under dishonorable conditions was issued. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision by a Department of Veterans Affairs Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay assertions may also serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Obstructive Sleep Apnea The Veteran asserts that his OSA is directly related to service. Specifically, the Veteran asserts that he was diagnosed with OSA during service and that his symptoms continued since service. Initially, the Board notes that service treatment records (STRs) show the Veteran reported snoring in January 1994 that was so bad his spouse thought he was choking. The Veteran was diagnosed with a deviated septum and an ear, nose and throat (ENT) consultation was requested. A January 1995 ENT consultation record noted symptoms of significant snoring and no symptoms of daytime somnolence or apnea. The Veteran was diagnosed with septal deviation and heroic snoring. In June 1995, the Veteran underwent a tonsillectomy and uvulopalatopharyngoplasty (UPPP). A pre-operative diagnosis of “significant minor obstructive sleep apnea” was provided. Symptoms included heroic snoring, significantly redundant pharyngeal tissue and enlarged tonsils. The Board notes that STRs show the above mentioned January 1995 ENT consultation and June 1995 diagnosis was provided by the same physician, Dr. P.S. Following service, a June 2010 private medical record shows a diagnosis for nocturnal hypoxia and questionable OSA. The physician was unsure if symptoms were due to apnea and a sleep study was recommenced for further evaluation. The Veteran underwent a VA examination in March 2011. The Veteran was diagnosed with nocturnal hypoxia and status-post septorhinoplasty and UPPP. The examiner noted STRs showing complaints of difficulty breathing through the nose and snoring in 1995. The Veteran reported that he continued to snore following surgery. He also reported that his spouse told him he snored and moved around during his sleep to adjust himself. In addition, the Veteran reported that his symptoms affected his energy including tiredness every morning and throughout the day. With regard to etiology, the examiner stated that he could not provide an opinion without resorting to mere speculation. The examiner noted that there was no objective clinical evidence to determine when the Veteran’s current symptoms of restless sleep and daytime fatigue began. The examiner further stated that it was unclear on what basis the 1995 preoperative diagnosis for minor OSA was based. Lastly, the examiner noted no further STR showing a diagnosis for OSA. The Board notes that the Veteran did not undergo diagnostic testing at this time to determine whether he had a diagnosis for OSA. A November 2013 sleep study revealed a diagnosis for severe OSA. The Veteran noted complaints of excessive daytime sleepiness, snoring, witnessed apneas and insomnia. In an August 2017 memorandum, the Veteran’s representative disputed the VA examiner’s conclusion that the question of whether the Veteran’s claimed OSA was etiologically related to service could not be resolved without mere speculation on the basis that the in-service 1995 pre-operative diagnosis was unclear. The representative noted that the examiner relied on a 1995 ENT consultation that found no apnea and no daytime somnolence at that time. However, the representative further noted the same physician later provided the pre-operative diagnosis for OSA. Additionally, the representative noted that no polysomnogram study was conducted during the March 2011 VA examination. Thus, the representative asserted that the March 2011 VA examination was inadequate. After a review of the evidence of record, lay and medical, the Board finds that service connection for OSA is warranted. The Veteran clearly has a current diagnosis and the remaining question is whether his OSA manifested in service or is otherwise related thereto. In this regard, the STRs clearly show the Veteran was diagnosed with OSA during service. The record also includes lay statements noting symptoms of snoring, sleep disturbance and apnea both during and since service. The Board finds that the Veteran is competent to provide evidence of some symptoms of OSA, such as difficulty sleeping and gasping for breath, though not an actual “apnea” because one must be awake to observe such. The Board further finds that other lay persons are competent to report symptoms and sleep difficulties that the Veteran experienced, including heavy snoring and apneas as such symptoms are readily apparent. Jandreau v. Shinseki, 492 F.3d 1372 (Fed. Cir. 2007) (stating lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition . . . sometimes the layperson will be competent to identify the condition where the condition is simple). The March 2011 VA examination is inadequate. The examiner did not conduct diagnostic testing to determine whether the Veteran had a diagnosis of OSA. However, medical evidence submitted subsequent to the VA examination evidences a current diagnosis for OSA which was manifested by symptoms including heavy snoring, witnessed apneas and somnolence. As such, the Board finds that the VA examination was based on an inaccurate factual predicate. Accordingly, the Board finds the March 2011 VA examination inadequate to adjudicate the issue on appeal, and, thus, of little probative value. The Board has found the evidence in at least relative equipoise on the question of whether he has had OSA symptoms that began during service and continued since separation from service; thus tending to show direct service incurrence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Accordingly, the Board will resolve reasonable doubt to find that the Veteran had a diagnosis of OSA during service as well as symptoms during and following service, including heavy snoring, gasping for breath, cessation of breathing and daytime fatigue. Such evidence tends to show the onset of sleep apnea symptoms during service (i.e., that OSA was “incurred” in service). Thus, the in-service and post-service diagnoses coupled with competent and credible lay statements of OSA symptoms during and after service that later served in part as the basis for a diagnosis of sleep apnea shows that sleep apnea was “incurred in” active service. See 38 C.F.R. § 3.303(d). For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds the criteria for direct service connection for OSA have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REMANDED ISSUES The issues of entitlement to service connection for right knee disability, and entitlement to an initial compensable rating for left ankle disability, are remanded for additional development. Initially, the Board notes that the Veteran’s STRs appear incomplete. In this regard, the Board notes that efforts made to obtain STRs from the Veteran’s first period of active duty service (November 1984 – November 1986) were unsuccessful. See August 2010 Deferred Rating Decision and September 2010 Request for Information. However, the available STRs contained in the claims file from the Veteran’s second period of active duty service end in January 1999, almost two years prior to the Veteran’s separation from service. Importantly, the claims file does not contain the Veteran’s separation examination. A review of the January 1999 STR shows the Veteran was being treated for a left ankle disability at that time. Therefore, as the Veteran is claiming that his left ankle disability resulted in an abnormal gait which caused his right knee disability, and as the Veteran has additionally asserted that his right knee was injured during service (See January 2011 Statement ), the Board finds that further efforts should be made to obtain and associate with the claims file the Veteran’s complete STRs. 38 U.S.C. § 5103A(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2017). The Board also finds the January 2011 VA examination inadequate to adjudicate this issue on appeal. The examiner opined that it was “less likely than not” that the right knee condition was caused by or a result of the service-connected left ankle disability. In coming to this conclusion, the examiner found that right knee pain was either associated with some minor degenerative changes or due to a medial meniscus tear and concluded that either condition would not be related to occasional left ankle synovitis. The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). However, the examiner did not address whether the service-connected left ankle disability aggravated the right knee disability. As such, a new VA examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the increased rating issue on appeal, the Board finds that another VA examination is necessary to adequately determine the current nature and severity of his disability. The Veteran underwent a VA examination in January 2011. A review of the examination report does not evidence whether the Veteran’s left ankle was tested on both active and passive motion, nor did it provide range of motion (ROM) testing for the right ankle. In light of a recent United States Court of Appeals for Veterans Claims holding in Correia v. McDonald, 28 Vet. App. 158 (2016), the Board finds that the January 2011 VA examination is not adequate. Correia provided a precedential finding that 38 C.F.R. § 4.59 required VA examinations to include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing, if possible, with ROM measurements of the opposite undamaged joint (in this case, the right ankle). The matters are REMANDED for the following actions: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Request the Veteran’s complete service treatment records from January 1993 to October 2000. If necessary, the RO should contact NARA, JSRRC, or any other appropriate facility, to attempt to locate and associate with the claims file any missing STRs. If any service treatment records are unavailable, issue a formal finding of unavailability and notify the appellant so that he can submit any service medical records in his possession. 3. Only after completion of the above specified development, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed right knee disability. The examiner should provide the following opinions: (a) Is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed right knee disability is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed right knee disability was caused by the Veteran’s service-connected left ankle disability? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed right knee disability was permanently worsened beyond normal progression (aggravated) by the Veteran’s service-connected left ankle disability? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. Only after completion of the above specified development in #1, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected left ankle disability. The examiner should review pertinent documents in the Veteran’s claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct range of motion studies for both the right and left ankle, and assess any functional impairment due to such factors as pain and weakness, and express this functional impairment in terms of further loss of motion. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 5. Then, readjudicate the claims remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow an appropriate time for response. Then, return the claims to the Board. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel