Citation Nr: 21001945 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-41 492 DATE: January 12, 2021 ORDER Service connection for sleep apnea is granted. REMANDED Service connection for a respiratory condition, to include asthma, chronic obstructive pulmonary disease (COPD) (claimed as respiratory/chronic bronchitis), is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of obstructive sleep apnea. 2. The current sleep apnea is etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an March 2013 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for sleep apnea and chronic bronchitis. This case was previously before the Board in June 2018 and October 2019, where the issues on appeal was remanded. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the Board remands service connection for a respiratory disorder, including asthma and COPD, for additional development the Board need not address Stegall compliance at this time. The Board finds that the duties to notify and assist the appellant regarding the issue of service connection for sleep apnea have been rendered moot by the grant of service connection for sleep apnea, which is a full grant of the benefits sought on appeal. 1. Service Connection for Sleep Apnea The Veteran contends that service connection for sleep apneas is warranted as directly due to service or as a result of the service-connected headaches. The Veteran and his spouse have reported a long history of symptoms of sleep apnea since approximately 1969, after the Veteran’s return from Vietnam. Additionally, lay evidence indicates that severe headaches have also affected the Veteran’s ability to sleep. See July 2012, March 2013 Correspondence. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. In addition to direct service connection (discussed above), service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(c). Initially, the Board finds that the evidence shows a current diagnosis of obstructive sleep apnea. See October 2010 private treatment record, October 2018 VA examination report. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of sleep apnea in service and since service separation that were later diagnosed as obstructive sleep apnea, i.e., whether sleep apnea was directly “incurred in” service. The Veteran and his spouse have provided credible lay statements of an onset of symptoms of sleep apnea in 1969, after he returned from Vietnam. The Veteran’s spouse reported that she met the Veteran in 1969 and married him a year later. The Veteran’s spouse asserts that she has observed symptoms of fitful sleeping patterns described as jumping and gasping for air multiple times a night, and a loud snoring over the years since 1969. The Veteran asserts that he has been treated for symptoms of sleep apnea for 20 years or more. The Veteran and his spouse have provided lay statements of symptoms of sleep apnea that have been present since 1969 and continued to progress over the year. Post service treatment records also show lay reports, for the purpose of treatment, of a history of snoring and waking up choking with a confirmed diagnosis of sleep apnea in a 2010 sleep study. See July 2012, March 2014 lay statements; October 2010, July 2013, December 2016 private treatment records. A VA examination was provided in October 2018. The VA examiner opined that it was less likely than not the sleep apnea was incurred in or caused by service. The examiner reasoned that the lay reports of a long history of fitful sleep is not evidence of a diagnosis of sleep apnea, as there is no evidence of a diagnosis of sleep apnea during active service or at the time of separation. See October 2018 VA examination report. In an October 2019 Decision, the Board found the October 2018 VA opinion to be inadequate because it improperly discounted lay evidence regarding the quality and continuity of symptoms in determining that sleep apnea was not incurred in service. An addendum opinion was requested with specific instructions to consider the lay reports of symptoms, treatment, and injuries for sleep apnea in formulating the requested opinion. In a December 2019 addendum opinion, the VA examiner opined that it is less likely than not that the sleep apnea is related to service. The VA examiner reasoned that the Veteran’s statement and other lay testimony establishes a chronicity of symptoms, but they are not qualified to ascribe symptoms to a diagnosis, as there is no documented evidence of sleep apnea during active service. The examiner noted that the Veteran was diagnosed with sleep apnea in 2010, 30 years after service, and the “the medical model states all decisions of medical professionals are to be based on credible medical evidence. Lay testimony does not constitute credible medical evidence.” See December 2019 VA examination report. The December 2019 opinion is of little probative value as the examiner continues dismiss competent lay reports of a long history of symptoms snoring and fitful sleep with gasping for air multiple times that have been present since 1969 simply because it is not medical evidence, without explaining why the symptoms reported do not provide a basis for the later diagnosis of sleep apnea many years after service. The Veteran and his spouse are competent to reports any symptoms of sleep apnea they have witnessed at any time, and lay evidence can be sufficient evidence of a diagnosis where lay testimony is describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although the Veteran was not specifically diagnosed with a sleep apnea disability of in active service, such is not required to meet the requirements for service connection for sleep apnea under any theory of service connection, including direct service connection. See 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence). In a November 2019 opinion, a private nurse practitioner opined that the Veteran’s sleep apnea is at least as likely as not related to service. The medical provider explained that the Veteran and his wife’s statements indicate that the Veteran exhibited symptoms of nocturnal gasping, loud snoring, chronic headaches within one year of leaving service. Upon review of medical literature, the nurse practitioner explained that loud snoring, morning headaches, and choking or gasping during sleep are clinical symptoms suggestive of sleep apnea. The Veteran was diagnosed with sleep apnea in 2010 following progressively increasing sleep disturbance, excessive daytime fatigue, and loud snoring since leaving service. Additionally, the Veteran had persistent headaches during service that are deemed service connected, and headaches, including migraine cluster, are associated with obstructive sleep apnea per medical literature. See November 2019 private treatment record. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for direct service connection for sleep apnea have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Service connection for a respiratory condition, including asthma and COPD, is remanded. The Veteran asserts that service connection for a respiratory condition is warranted. The Veteran and his spouse have provided competent lay evidence of symptoms of breathing difficulties that began during service due to poor air quality and frequent dust. The Veteran also reported that he was exposed to contaminated water in Vietnam when he jumped into contaminated water to rescue two soldiers. The Veteran and his spouse have asserted that respiratory symptoms, including cough, sob, and wheezing have continued to progress over the years since service separation. See August 2012, March 2013 Correspondence; October 2018 VA examination report. In October 2019, the Board found that the October 2018 VA opinion regarding service connection for a respiratory condition to be inadequate, and remanded for an addendum opinion that considers lay evidence from the Veteran of symptoms of difficulty breathing continuously from his service in Vietnam to the present, and his spouse’s reports of observations of her husband’s respiratory behaviors - to include coughing, shortness of breath, congestion, and allergies, which she reports that he has experienced continuously from 1969 to the present. See October 2019 Board Remand. In a December 2019 opinion, the VA examiner opined that it is less likely than not that the respiratory condition, including asthma and COPD, was incurred in or caused by service. The Va examiner reasoned that the Veteran’s or other lay testimony establishes a chronicity of symptoms, but they are not qualified to ascribe symptoms to a diagnosis, as there is no documented evidence of a respiratory condition during active duty service, including in the STRs. The examiner noted that COPD is first diagnosed in 2018 and “the medical model states all decisions of medical professionals are to be based on credible medical evidence. Lay testimony does not constitute credible medical evidence.” See December 2019 VA examination report. The December 2019 opinion is also inadequate for adjudication purposes, as the examiner continues to dismiss lay evidence of symptoms of breathing difficulties during service and since service simply because a respiratory disability is not diagnosed during service. In doing so, the examiner does not adequately consider and explain why the lay evidence of symptoms of breathing difficulties during and since service do not provide a basis for the later diagnosis asthma and COPD, and thus, in service incurrence of a respiratory condition. The Veteran and his spouse are competent to reports any respiratory symptoms the observed at any time, including an onset of respiratory symptoms during service and continuity of symptoms after service. See 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence). As such, an addendum opinion is necessary for the examiner to consider the competent lay evidence of breathing difficulties during and since service in formulating opinion. Additionally, in March 2014 Correspondence, the Veteran’s spouse asserted that Dr. Smith has treated the Veterans since 1970 and has records of the Veteran’s medical conditions, including bronchitis and sleep apnea. The Veteran’s spouse listed two numbers that could be used to reach Dr. Smith for further information, including an office number and mobile cell phone number. A March 2018 Report of Contact indicates that the number listed on the medical release (the office number) was no longer in service and the writer was unable to find any other contact information for Dr. Smith. There is no indication that the AOJ attempted to contact Dr. Smith via the mobile phone number that the Veteran’s spouse provided in addition to Dr. Smith office number in the March 2014 Correspondence. As Dr. Smith may have records that are relevant to the issue of service connection for a respiratory condition, the RO should attempt to obtain and outstanding private treatment record from Dr. Smith. Service connection for a respiratory condition is REMANDED for the following action: 1. Contact the Veteran to request specific information as to any outstanding private medical treatment concerning treatment of respiratory condition, to include all records and treatment notes from Dr. Smith from 1970 to present. The RO should attempt to contact Dr. Smith at the mobile number the Veteran’s spouse provided for Dr. Smith in the March 2014 statement to request outstanding medical records, and document if the attempt is unsuccessful. The Veteran is advised to submit all treatment records, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.158. The RO is to request any records identified. 2. Return the VA medical opinion report to the VA examiner who provided the medical opinion in December 2019. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should offer opinions: a) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed respiratory condition, to include asthma and COPD, was caused by active service? Please note that the Veteran is competent to report in-service symptoms and the continuity of those symptoms since service. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.