Citation Nr: 21002445 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-19 229 DATE: January 13, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for chronic kidney disability, to include as secondary to service-connected disabilities, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his sleep apnea had its onset during his active service. 2. Resolving reasonable doubt in the Veteran’s favor, his chronic kidney disability is proximately due to, or aggravated by, his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for entitlement to service connection for chronic kidney disability, to include as secondary to service-connected disabilities, have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from April 1986 to October 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision issued by a Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of that hearing is associated with the claims file. This case was previously before the Board in April 2020, at which time the issues on appeal were remanded for additional development. This case has been returned to the Board for further appellate action. Service Connection – Obstructive Sleep Apnea The Veteran asserts that his obstructive sleep apnea (OSA) is related to his active service. The Veteran’s service treatment records (STRs) are absent of any complaint of, treatment for, or diagnosis of OSA. In April 2013, the Veteran reported that he was not getting rest at night, and that his wife told him that he snored loudly and seemed to stop breathing as he slept. In June 2013, the Veteran underwent a sleep study which resulted in a diagnosis of sleep apnea. In October 2017, the Veteran reported that he only slept for four to five hours at night and often experienced fatigue during the day. In a December 2018 psychiatry note, the Veteran noted that he only slept for about five to six hours per night. During the December 2019 Board hearing, the Veteran testified that he noticed sleep issues in service but did not seek treatment until 2012. Additionally, the Veteran’s wife testified that the Veteran’s long-standing sleep issues were manifested by heavy snoring and sounding like he was choking or gasping for air. Additionally, the Veteran’s wife stated that she would shove the Veteran if he was not snoring because she thought he was not breathing. In an April 2020 VA medical opinion, the VA examiner opined that there was no objective evidence that the Veteran’s OSA was related to his military service. The VA examiner reasoned that the Veteran’s STRs were silent for symptoms that may be attributed to OSA. Additionally, the VA examiner noted that the Veteran’s post-service record, to include VA examinations, did not reveal evidence of hypersomnolence or other OSA symptoms. The VA examiner noted that the Veteran’s first reported fatigue and daytime somnolence was in 2013, which was 26 years post active duty. The Board finds that the April 2020 VA medical opinion is inadequate for adjudication purposes. In that regard, the VA examiner primarily relied on the absence of evidence as the basis for his negative etiological opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, the VA examiner failed to consider the Veteran, and his wife’s, lay statements pertaining to the onset and continuity of his OSA symptoms both during and after his active service. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) The Board acknowledges that there is evidence against the claim. However, the Board notes that the Veteran and his wife are competent to report the observable symptomatology of his obstructive sleep apnea and report on the chronicity of symptomatology since active service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, their statements have been found to be credible. Additionally, the Board notes, that lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical conditions; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time support a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In sum, the Veteran has a current diagnosis of obstructive sleep apnea and the Veteran, and his wife, have competently and credibly reported his sleep apnea symptoms since his time in service. Therefore, although the claim could be remanded for a new VA examination, as was instructed in the April 2020 remand, the Board finds that the benefit-of-the-doubt will be resolved in the Veteran’s favor and remand is not necessary. Accordingly, the Board finds that the preponderance of the evidence is at least in equipoise and the benefit of the doubt must be resolved in favor of the Veteran. Therefore, entitlement to service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Chronic Kidney Disability The Veteran asserts that his chronic kidney disability was caused by long-term nonsteroidal anti-inflammatory drugs (NSAIDs) used to treat the pain resulting from his service-connected disabilities. The Board notes that the Veteran’s service treatment records (STRs) are absent of any complaint of, treatment for, or diagnosis of chronic kidney issues. In a November 2012 treatment note, the Veteran was noted as needing to get a complete blood count with five milliliters of blood (CBC5) and a comprehensive metabolic panel (CMP) for kidney and liver function due to the possibility of needing longterm nonsteroidal anti-inflammatory drug (NSAID) therapy. In July 2013, the Veteran’s renal ultrasound revealed mild cortical irregularity, undulating contour of the right kidney, which was noted as reflecting fetal lobulation or scarring. The ultrasound results also indicated that there was likely dromedary hump configuration of the left kidney. In a November 2013 primary care note, the Veteran was noted as having an elevated creatinine level that was most likely from NSAID use. In February 2014, the Veteran was afforded a VA examination for kidney conditions. At that time, the Veteran reported that he began taking NSAIDs in 1987 after an in-service left foot and ankle injury. The Veteran stated that he took six to eight prescription ibuprofen per day during his time in the military and after his separation from service he took four to six over-the-counter ibuprofen pills per day. The Veteran also reported that his primary care provider informed hm that his kidneys were damaged due to the use of NSAIDs. Further, the Veteran noted that he drank six to eight cups of coffee daily for approximately four months in 2012. The VA examiner noted that the Veteran had a 2013 diagnosis of chronic kidney disease. However, the VA examiner opined that the Veteran’s chronic kidney disease was not incurred in or caused by his active service. The VA examiner reasoned that the Veteran had several risk factors that predisposed him to chronic kidney disease, to include a heart arrythmia, obesity, excessive caffeine intake, myocardial infarction (MI), NSAID use, and heart disease. Additionally, the VA examiner noted that the Veteran’s chronic kidney disease was multifactorial and could not be linked to one specific etiology. In a March 2014 primary care note, the Veteran was noted as reporting concern about his kidney function because he was told they were damaged in his heart attack. In a November 2014 nursing note, the Veteran was informed that due to his decreased kidney function his primary care provider would have to change his pain medication to extra strength Tylenol. A March 2015 physical rehabilitation note revealed that the Veteran stopped his Meloxicam, and was advised to avoid NSAIDs, due to renal insufficiency. In February 2017 treatment note, the Veteran was noted as having decreased kidney function that was stable and otherwise within normal limits. In an April 2017 physical therapy consultation, the Veteran was noted as being unable to take NSAIDs for inflammation due to kidney damage. During his December 2019 Board hearing, the Veteran testified that he always took ibuprofen for his foot pain but was instructed to stop taking it due to the effect on his kidneys. In August 2020, the Veteran was afforded a VA examination for kidney conditions. At that time, the Veteran reported that the treatment for his kidney disability was diet modification and avoiding NSAIDs. The VA examiner opined that the Veteran’s chronic kidney disability was less likely than not proximately due to or the result of the Veteran’s service-connected conditions. The VA examiner reasoned that the current medical literature did not support a causal nexus between the referenced service-connected conditions and chronic kidney disability manifested by elevated creatinine levels. The VA examiner also reasoned that there was no objective evidence to support the Veteran’s chronic kidney disability was due to or the result of medications used to treat his service-connected disabilities. Additionally, the VA examiner noted that the Veteran’s creatinine levels remained elevated even after he stopped taking NSAIDs, and that NSAIDs were only a temporary contributor, and not the cause, of his pre-existing kidney condition. The VA also assessed that the medical evidence was not sufficient to support a determination of baseline level of severity and stated that there was no objective evidence to support aggravation. The Board notes that the August 2020 VA opinion is of low probative value. In this regard, the VA examiner failed to accurately report all the objective medical evidence of record. In particular, the VA examiner failed to account for the November 2013 treatment note that linked the Veteran’s elevated creatinine level to NSAID use. Additionally, the VA examiner’s opinion is internally inconsistent as it recognizes the NSAID use as a contributor to the Veteran’s kidney condition, but then finds that there was no objective evidence to support aggravation. Overall, the Board acknowledges that there is evidence against the claim. However, the Board finds that the medical evidence of record has consistently documented that the Veteran’s use of NSAIDs negatively impacted his chronic kidney disability. In fact, both the February 2014 and August 2020 VA examiners stated that NSAIDs were either a factor or contributor to the Veteran’s chronic kidney disability. Further, the additional medical evidence reveals that the Veteran’s medications were changed to non-NSAIDs, or he was advised to discontinue usage of NSAIDs, due to renal insufficiency and kidney damage. (Continued on the next page)   Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for a chronic kidney disability is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, Associate Counsel 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.