Citation Nr: 21002582 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-05 566A DATE: January 14, 2021 ORDER Service connection for sleep apnea is granted. REMANDED Service connection for a right foot condition, to include Morton’s neuroma, is remanded. Service connection for hypertension is remanded. FINDING OF FACT The Veteran's sleep apnea had its onset in service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1980 to October 1983 and from February 2009 to January 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training or experience. 38 C.F.R. § 3.159(a)(2). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Since at least October 2013, the Veteran has reported symptoms he attributes to sleep apnea. including insomnia, snoring. and daytime sleepiness, which he reports began during his active duty service in Iraq in 2009 and 2010. He testified at the July 2020 hearing that his roommate in Iraq started complaining about his snoring about midway through their deployment and that his wife began complaining about his snoring after he returned from Iraq. He denied snoring prior to being deployed in 2009. The Veteran was diagnosed with obstructive sleep apnea in September 2013, establishing a current disability. The Veteran has consistently reported sleep disturbances, waking up needing to catch his breath, snoring and sleeping difficulties during and since service. The Veteran's wife and roommate reported similar symptoms during and after his deployment to Iraq. These symptoms of sleep apnea, including snoring, are observable symptoms which are capable of being identified by the Veteran, his wife and his roommate as lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Doctors have associated the symptoms reported by the Veteran with the diagnosis of sleep apnea. Specifically, in July 2017, his doctor concluded that his report of these symptoms warranted referral for formal diagnostic testing for sleep apnea. Therefore, the Board finds these lay statements are sufficient to establish a nexus between the Veteran’s obstructive sleep apnea and his time in service. Service connection for obstructive sleep apnea is warranted. REASONS FOR REMAND VA has a duty to assist Veterans in obtaining evidence to substantiate claims, which includes obtaining relevant records and providing medical examinations or obtaining medical opinions when necessary. 38 C.F.R. § 3.159(c). The evidence of record indicates that the Veteran is receiving Social Security Disability Insurance (SSDI) payments. It does not appear any efforts have been made to secure such records, which are potentially relevant to the current claims. A remand is required to obtain any relevant SSA records. Service connection for a right foot condition, to include Morton's neuroma, is remanded. The Veteran contends that his right foot began hurting while he was deployed in Iraq. Prior to Iraq, the Veteran had no problems with his right foot. He has consistently described that the extensive walking on uneven surfaces during his deployment aggravated his service-connected right knee disability and pain began radiating down his leg to his right foot. Additionally, he explained how the aggravation of his right knee changed his gait, especially how his right foot hits the ground while he is walking, which aggravated his foot pain. The claims file contains two nexus opinions from two VA examinations – one in May 2014 and the other in June 2017. At the May 2014 examination, the Veteran did not report walking on uneven ground, and alleged strictly that his foot condition was secondary to the knee. In June 2017, both the direct and secondary theories were mentioned, but only the latter weas clearly addressed. Additionally, with regard to secondary service connection, the examiner failed to discuss mechanical causation, such as by altered gait, and simplistically stated the two conditions are separate entities. As neither opinion is adequate, particularly the second, remand is required for adequate examination and opinion. Additionally, VA made only a single request for proper releases to permit assistance in obtaining private chiropractic units, in June 2017. At least two attempts, as noted in the deferred rating decision prompting the initial request, are needed to comply with the duty to assist. Another request for authorizations to assist in obtaining any identified private records is required. Service connection for hypertension is remanded. At the July 2020 hearing, the Veteran testified that he was diagnosed with hypertension shortly after returning from his deployment in Iraq. He testified that prior to his deployment, he did not suffer from hypertension. The Veteran is competent to report the nature and onset of symptoms as well as contemporaneous medical diagnoses. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Further VA treatment records from 2010 show use of clonidine, which can be prescribed for control of hypertension. A reasonable basis for a possible nexus is raised; examination or medical review is required. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Contact the Social Security Administration and obtain any decision(s) and supporting evidence regarding the Veteran’s disability claim. Associate all relevant records with the claims file. 2. Contact the Veteran and request properly executed, separate VA form 21-4142’s, Authorization and Consent to Release Information to the Department of Veterans Affairs, for any private care providers who have treated him for his foot condition or hypertension. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 3. After the above development is completed, schedule the Veteran for a VA hypertension examination; the claims folder, including this order in its entirety, must be reviewed in conjunction with the examination. The examiner must identify any current diagnosis or disability related to blood pressure and its etiology. The use of clonidine shortly after separation must be specifically discussed. The examiner must opine as to whether hypertension is at least as likely as not (50 percent probability or greater) caused or aggravated by service. The examiner must also opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s blood pressure disability was proximately caused or aggravated by any of his other service-connected disabilities, including but not limited to posttraumatic stress disorder (PTSD) and sleep apnea. A full and complete rationale is required for all opinions expressed. 4. Obtain an addendum opinion regarding the current nature and etiology of the Veteran’s right foot disability, to include mononeuritis and Morton’s neuroma. The claims folder must be reviewed in conjunction with the examination; provision of a new physical examination is at the discretion of the reviewer. The reviewer must opine as to whether it is at least as likely as not (50 percent probability or greater) that any current right foot disability is caused or aggravated by service. The examiner must also opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right foot disability was proximately caused or aggravated by any of his other service-connected disabilities, including but not limited to his right knee disability. The reviewer must consider and comment upon the Veteran’s description of the onset and course of his foot pain, specifically that he changed his gait after his service-connected right knee disability was aggravated by the uneven terrain in Iraq and that his knee pain radiated into his foot. The examiner’s attention is directed to the Veteran’s July 2020 testimony for a description of how his gait changed. A full and complete rationale for any opinion expressed is required. 5. Then, readjudicate the claim on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.