Citation Nr: 1800645	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-34 342	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to obstructive sleep apnea (OSA).  

2.  Entitlement to for the residuals of uvulopalatopharyngoplasty (UPPP), to include as secondary to obstructive sleep apnea.  

3.  Entitlement to service connection Hashimoto's disease.  

4.  Entitlement to service connection for a temporomandibular joint syndrome (TMJ).  

5.  Entitlement to service connection for sinusitis.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Kass, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1980 to March 1992, May 2009 to April 2012, February 2014 to October 2014, and January 2015 to February 2016.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  Subsequently, the appeal was transferred to the Roanoke, Virginia RO.  

The Veteran testified before the undersigned Veterans Law Judge in April 2016.  A transcript of the hearing has been associated with the record.  


FINDINGS OF FACT

1.  Resolving all doubt in the Veteran's favor, the Veteran's obstructive sleep apnea is related to his active military service.  

2.  Resolving all doubt in the Veteran's favor, the Veteran's residuals of uvulopalatopharyngoplasty is related to his service-connected sleep apnea.  

3.  Resolving all doubt in the Veteran's favor, the Veteran's residuals of Hashimoto's disease is related to service.  

4.  Resolving all doubt in the Veteran's favor, the Veteran's temporomandibular joint syndrome is related to service.  

5.  In April 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal for sinusitis.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for obstructive sleep apnea are met.  38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 

2.  The criteria for service connection for uvulopalatopharyngoplasty, to include as secondary to service-connected disabilities, are met.  38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

3.  The criteria for service connection for residuals of Hashimoto's disease are met.  38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 

4.  The criteria for service connection for temporomandibular joint syndrome are met.  38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

5.  The criteria for withdrawal of the sinusitis appeal by the Veteran have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS  

I.  Service Connection 

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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).  In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

A.  Obstructive Sleep Apnea (OSA)

The Veteran is seeking service connection for OSA.  The Board finds service connection is warranted for OSA because he satisfies the three required elements.  

First, the Veteran has a current diagnosis.  See September 2012 VA examination report.  Second, the Veteran had two injuries to his face during service.  Third, the Board finds the evidence is at least in equipoise as to whether the Veteran's OSA is related to service.  

The Veteran had two incidents during service that caused trauma to his face.  First, in September 1984, when the Veteran was beaten and kicked in the face when he was acting as a security officer breaking up an altercation with civilians.  Second, in April 1985, when the Veteran fell off of a bicycle and hit his face on asphalt.  His laceration required sutures.  

In September 2012, a VA examiner diagnosed obstructive sleep apnea.  The Veteran was required to use a CPAP machine.  

In March 2016, Dr. J.P. opined that it was more likely than not that the Veteran's apnea was not diagnosed during separation in March 1992 due to a lack of clinical understanding at the time.  His separation examination noted a deviated septum and there was evidence of nasal trauma.  Dr. J.P. concluded that the Veteran's apnea was caused by the two in-service incidents.  

As the evidence is at least in relative equipoise, resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for OSA has been established.  38 U.S.C. §5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

B.  Residuals of Uvulopalatopharyngoplasty (UPPP)

The Veteran contends the residuals of his UPPP are related to service, including his now service-connected obstructive sleep apnea.  The Board finds service connection is warranted.  

First, the Veteran underwent a UPPP due to his sleep apnea.  See March 2016 letter from Dr. J.P.  In this decision, the Board grants service connection for the Veteran's sleep apnea, which means that he has a service-connected disability.  Third, the Board finds the evidence is at least in equipoise as to whether the Veteran's residuals of UPPP are related to his service-connected OSA.  

Accordingly, secondary service connection is granted for the Veteran's residuals of uvulopalatopharyngoplasty.  

C.  Residuals of Hashimoto's disease

The Veteran is seeking service connection for residuals of Hashimoto's disease.  The Board finds service connection is warranted because he satisfies the three required elements.  

First, the Veteran had a current diagnosis during the appeal period.  See September 2012 VA exam report.  Second, the Veteran's disability was discovered and documented during service.  Third, the Board finds the evidence is at least in equipoise as to whether the Veteran's residuals of Hashimoto's disease are related to service.  

In March 1992, the Veteran's separation exam noted a firm mass on thyroid.

In November 2009, a thyroidectomy during service showed Hashimoto's disease.

In December 2015, Dr. M.G. concluded that it was more likely than not that the thyroid mass noted in 1992 later progressed to papillary thyroid cancer and surgery in 2009.  He based this opinion on the fact that the right thyroid mass indicated that it was Hashimoto's thyroid disease in 1992 and the surgeon's evaluation showed a multinodular goiter with dominant right nodule.

In March 2016, Dr. J.P. found it was more likely than not that the mass detected in 1992 and the thyroidectomy were related to service.  First, the mass was discovered at the Veteran's separation examination. Second, the thyroidectomy was performed during service.  The post examination of the thyroid gland evidenced a papillary thyroid carcinoma.  However, post-thyroidectomy radiation ablation was not performed in accordance with current medical practice to address any residual carcinoma.  He explained that thyroid goiters or Hashimoto's disease do not naturally progress to papillary thyroid carcinoma.  As result of the thyroidectomy, the Veteran's condition is chronic and a residual carcinoma has the potential to reoccur.  

As the evidence is at least in relative equipoise, resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for residuals of Hashimoto's disease has been established.  38 U.S.C. §5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  





D.  Temporomandibular Joint Syndrome (TMJ)

The Veteran is seeking service connection for TMJ.  He reported that he jaw started to click after being kicked in the face during an in-service incident.  The Board finds service connection is warranted.  

First, the Veteran had a current diagnosis for TMJ.  See September 2012 VA examination report.  Second, the Veteran had two in-service incidents that resulted in injuries to his face.  Third, the Board finds the evidence is at least in equipoise as to whether the Veteran's TMJ is related to service.  

In September 2012, a VA examiner diagnosed temporomandibular joint syndrome. 

In April 2016, the Veteran explained that his pain began when he was assaulted during service and kicked in the face.

The Board finds that the aforementioned evidence is sufficient to place the relevant evidence, at a minimum, in a state of equipoise as to whether the Veteran's temporomandibular joint syndrome is related to service.  Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for temporomandibular joint syndrome has been established.  38 U.S.C. §§ 1117, 5107; 38 C.F.R. §§ 3.102, 3.317; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

II.  Withdrawal of Claim

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the Appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran withdrew the appeal for the above claims via an April 2016 statement at his hearing.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal regarding the sinusitis claim and it is dismissed.


ORDER

Service connection for obstructive sleep apnea is granted.

Service connection for residuals of uvulopalatopharyngoplasty is granted.

Service connection for residuals of Hashimoto's disease is granted.

Service connection for temporomandibular joint syndrome is granted.

The appeal for sinusitis is dismissed.  



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs