Citation Nr: 21004344 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-38 724 DATE: January 26, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a bilateral foot condition is denied. FINDINGS OF FACT 1. The Veteran’s service-connected right knee and left ankle disabilities inhibited activity and led to weight gain, obesity, and sleep apnea. 2. The Veteran’s right heel injury in service and his left great toe injury in service each resolved in service. Intermittent foot pain and bilateral plantar fasciitis noted years after service is not related to the injuries in service. CONCLUSIONS OF LAW 1. Sleep apnea is proximately due to service-connected disabilities. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.310 (2019). 2. Current bilateral foot disorders, including plantar fasciitis, were not incurred or aggravated in service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1984 to June 1987 and from July 1989 to July 1993. In a January 2011 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for sleep apnea and a bilateral foot condition. The Veteran appealed those denials to the Board of Veterans’ Appeals (Board). The Veteran testified at Board hearings in December 2015 and July 2018. The hearing transcripts are of record. Each hearing was before a different Veterans Law Judge (VLJ). In June 2019 the Veteran was informed of his right to testify before a third VLJ who would be assigned to a panel to decide his case. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In a July 2019 response, he waived his right to appear at an additional hearing before a third VLJ. Each of the VLJs who held a hearing is on the present panel deciding the case. The Board remanded the issues on appeal in May 2016 and September 2019. The issues on appeal before the Board previously included service connection for tinnitus, right ear hearing loss, and acquired psychiatric disability. In a September 2019 decision, the Board granted service connected for tinnitus and denied service connection for right ear hearing loss. Those decisions resolved the appeals as to the tinnitus and right ear hearing loss service connection issues. In an August 2020 rating decision, the RO granted service connection for an acquired psychiatric disability, specifically, persistent depressive disorder. That decision resolved the issue of service connection for psychiatric disability. 1. Service connection for sleep apnea The Veteran contends that his sleep apnea began in service or is secondary to service-connected disorders. He indicates that snoring and breathing lapses began while he was in service and worsened after service. He related that he did not seek treatment for those symptoms until after service. He also asserts that pain from service-connected musculoskeletal disorders made him less active, which led to considerable weight gain and the development of sleep apnea. His disabilities that VA has found to be service connected are a depressive disorder, disorders of the right knee, left ankle, and low back, hemorrhoids, skin disorders, tinnitus, and left ear hearing loss. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). A VA General Counsel opinion issued in January 2017 establishes that secondary service connection can be granted with obesity acting as an "intermediate step." VAOPGCPREC 1-2017. Specifically, a grant is warranted (1) if the service-connected disability caused the veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if this subsequent disability would not have occurred but for obesity. Id. The United States Court of Appeals for Veterans Claims (Court) has indicated that 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran’s claims file contains medical records from his 1989 to 1993 period of active service. Those records do not reflect any complaints of frequent sleep problems. On examination in June 1993, for separation from service, the Veteran marked no for history of frequent trouble sleeping. He marked yes for history of asthma and shortness of breath. The examiner did not note any respiratory or sleep problems. The examiner marked heavy for the Veteran’s weight. The Veteran’s claims file does not contain records of medical treatment from the years immediately following his 1993 separation from service. In October 2002 he submitted a claim for service connection for several problems, including joint aches and leg cramps. In VA treatment in August 2003, he reported that he had not seen a doctor for several years. A clinician described him as quite obese. In March 2004 the Veteran reported intermittent joint pain, mainly in the left shoulder. He also reported a lack of energy. In VA treatment in May 2009, the Veteran reported that in January 2009 he had a sleep study at a private facility. He indicated that the study showed obstructive sleep apnea (OSA). A VA clinician reviewed the study report and also concluded that the Veteran had OSA. In November 2010, the United States Social Security Administration (SSA) found that the Veteran had been disabled from July 2010, due to a primary diagnosis of OSA and a secondary diagnosis of morbid obesity. In the December 2015 Board hearing, the Veteran reported that during service he had some breathing problems. He stated that at that time he did not know what sleep apnea was. He responded that in service and over the years his wife noticed him snoring and having breathing gaps. He stated that he did not seek attention for those symptoms until they became severe. He reported that in 2009 he had a sleep study and was diagnosed with sleep apnea. He indicated that that presently his sleep apnea was treated with a CPAP machine that VA issued. He reported that he and his wife had been married for 23 years, including during his service. In December 2015 the Veteran’s wife wrote that after the Veteran’s service in Saudi Arabia, his snoring became so severe that it kept her from sleeping. She stated that she often checked on him because while sleeping he stopped breathing. On VA examination in July 2016, the examiner reviewed the Veteran’s claims file. The examiner noted the 2009 sleep study that showed OSA and a May 2016 CPAP titration study that showed ongoing OSA. The examiner expressed the opinion that the Veteran’s OSA was less likely than not caused by illness, injury, or events in service. In explanation, the examiner stated that VA treatment records did not reflect sleep apnea symptoms until 2006, long after separation from service. The examiner opined that the Veteran’s OSA was as likely as not secondary to significant weight gain and obesity after his separation from service. In the July 2018 Board hearing, the Veteran indicated that he had a long history of sleep problems, beginning in service. He stated that he did not realize that it was a problem. He reported that his wife said he had a long history of stopping breathing while sleeping. He indicated that presently he had a CPAP to address his sleep apnea. He reported that he first sought treatment for his sleep apnea in 1995, at a VA hospital. He stated that he sought VA treatment for it again from 2002 and was diagnosed with sleep apnea in 2003 or 2004. He stated that he first got a CPAP in 2009. In October 2019, in response to an RO request, a VA regional medical system provided records of treatment the Veteran received in 2006. The system indicated that no records from 1995 through 2005 had been found. In January 2020 a VA physician reviewed the Veteran’s claims file. The reviewer noted that a 2009 sleep study showed that the Veteran has OSA. The reviewer noted that prior to the sleep study the Veteran had a body mass index (BMI) consistent with obesity, and that he had significant weight gain over the two years preceding the sleep study. The reviewer stated that the etiological factors in the development of the Veteran’s sleep apnea more likely than not included his age, gender, obesity, and history of smoking. In September 2020, private physician C. C., M.D., evaluated the Veteran and completed a VA Disability Benefits Questionnaire (DBQ) about his sleep apnea. The Veteran reported that his painful left ankle and right knee disorders made exercise and other physical activity difficult. He stated that he had considerable weight gain. He indicated that he developed symptoms of sleep apnea and was diagnosed with sleep apnea. Dr. C. noted that the VA clinician who interpreted the Veteran’s January 2009 VA sleep study diagnosed OSA. Dr. C. expressed the opinion that the Veteran’s OSA more likely than not is related to or aggravated by his left ankle and right knee disabilities and associated decreased activity, weight gain, and obesity. In explanation, Dr. C. noted examination evidence of painful motion in the Veteran’s left ankle and right knee. She noted studies relating reduced activity and weight gain, and studies relating obesity and sleep apnea. From 2009 forward clinicians have consistently found that the Veteran has OSA. Medical records from the Veteran’s 1989 to 1993 service period reflect some respiratory complaints, without mentioning or ruling out sleep apnea. The Veteran and his wife have indicated that his snoring and breathing lapses while sleeping occurred while he was in service and continued after service. The Veteran’s medical records show weight gain during his later service period and further weight gain, and obesity findings, after that service period. Several clinicians have related his OSA to his weight gain and obesity. Dr. C. opined that his weight gain and obesity followed decreased activity, attributable in part to his service-connected left ankle and right knee disabilities. Dr. C.’s opinion supporting secondary service connection is persuasively explained and is consistent with the available evidence. VA clinicians who opined against direct service connection have not expressed opinion as to service connection secondary to the ankle and knee disabilities. The evidence supporting secondary service connection is convincing enough to balance the limits in information about the effects of the ankle and knee disabilities from service forward. Resolving reasonable doubt in the Veteran’s favor, the Board grants service connection for his sleep apnea. 2. Service connection for a bilateral foot condition The Veteran contends that current bilateral foot problems, including plantar fasciitis, began during service, or are otherwise attributable to events in service. On the Veteran’s service enlistment examination in October 1983, the examiner marked normal for the condition of the Veteran’s feet. In October 1991 the Veteran went to sick call for pain and swelling in his right heel. He reported that five days earlier he stepped on a rock. The treating clinician observed edema and pain to palpation. On follow-up the next day, the Veteran reported that he was barefoot when he stepped on the rock. The clinician noted tenderness in the right heel. The clinician’s assessment was heel contusion. Treatment included an analgesic, soaks, elevation, the use of soft shoes, and an instruction to exercise only as tolerated for the next five days. In June 1992 the Veteran went to sick call after he stepped on a broken light bulb. The treating clinician observed a three-millimeter laceration on the plantar aspect of his left big toe. No foreign body was found. The clinician prescribed daily wound care, a four-day profile, and return clinic visits as needed. On the Veteran’s June 1993 separation examination, he marked no for history of foot trouble. The examiner marked normal for the condition of his feet. The Veteran’s claims file does not contain any post-service treatment records from the remainder of the 1990s. In October 2002 he submitted a claim for service connection for several problems, including toenail fungus. In VA treatment in August 2003, the Veteran was noted to have toenail infection. The clinician noted that multiple toenails were hyperkeratotic. The clinician also found toenail onychomycosis. In a November 2003 podiatry consultation, the Veteran reported that, beginning during service, he had thick toenails and itchy, dry skin on his feet. The podiatrist observed that all toenails were thickened and dystrophic, and that skin on the soles of both feet was dry and flaky. The podiatrist found onychomycosis and tinea pedis. VA treatment notes from 2006 through 2020 reflect ongoing onychomycosis. In VA treatment in May 2010, the Veteran reported heel pain, worse in the morning and after increased use. In July 2010, the Veteran reported pain in his feet. A clinician observed flat feet, tenderness in the heels, and fungus. In August 2010 he stated that his feet sometimes swelled and hurt. In November 2010 a clinician noted +1 bilateral lower extremity edema. In December 2010, it was noted that bilateral foot pain was treated with medications. In VA podiatry treatment in January 2011, the Veteran reported a several year history of bilateral plantar heel pain. He also related dry skin on his feet. The podiatrist found decreased medial arch bilaterally, with flexible arches. There was rearfoot valgus stance with weightbearing. There was pain to palpation of the medial calcaneal tubercle bilaterally. X-rays revealed no abnormalities. The podiatrist diagnosed plantar fasciitis, pes planus, and xerosis. In a February 2011 statement, the Veteran contended that plantar fasciitis in his feet was secondary to wearing boots in service. In VA treatment in May 2011, he reported pain in his feet. On VA examination in June 2012, the Veteran reported that during service he experienced bilateral plantar heel and foot pain. He stated that he had one or more treatment visits and was given an analgesic. The examiner reviewed the Veteran’s claims file. On examination there was tenderness in the medial plantar heel and arch areas of both feet. The examiner found that the Veteran had moderate bilateral plantar fasciitis. In September 2012, the June 2012 examiner expressed the opinion that the Veteran’s current foot disorders were less likely than not incurred in service. In explanation, the examiner found that a contusion treated in 1991 and a laceration treated in 1992 were followed by normal findings on the separation examination in 1993. The examiner also noted that his STR contained no finding of plantar fasciitis. In VA treatment in September 2012, the Veteran reported a burning sensation in his heels and increased pain with walking. A clinician noted tenderness at the right heel. The clinician’s assessment was bilateral heel pain, most likely plantar fasciitis. From 2013 through 2020, some VA treatment notes reflect foot pain addressed with medication and orthotics. In the December 2015 Board hearing, the Veteran reported that in service in Germany he stepped on rocks with his bare foot. He stated that he sustained injury and damage to internal tissues. He recalled that he went on sick call and had treatment and a profile for a couple of weeks. He reported that after service he initially dealt with the pain on his own, without seeking treatment. He stated that the problem worsened over time. He related that he had VA treatment for the problem in 2002 to 2004. He indicated that treatment was with pain medication, and that he also was given soaks for toenail problems. On VA examination in July 2016, the Veteran reported that during service he sustained foot injury when he stepped on gravel. He related having foot pain intermittently since then. He reported periodic pain in his left heel, aggravated by walking barefoot. The examiner reviewed the Veteran’s claims file. The examiner noted pain on manipulation of the Veteran’s left foot. Both of the Veteran’s feet had callouses characteristic of flatfoot. The examiner found plantar fasciitis. The examiner expressed the opinion that current disorders of the Veteran’s feet were less likely than not caused by injury, illness, or other events in service. In explanation, the examiner noted that the STR showed a right heel injury in 1991, and that the Veteran reported no chronic foot problems on the 1993 separation examination. In the July 2018 Board hearing, the Veteran reported that in service he stepped on a sharp rock with his bare heel. He indicated that the injury was painful with weightbearing. He stated that he went to the medics for the injury. He indicated that presently he still had pain in that area. He reported that the first flare-up of symptoms after the injury occurred during his second active service period. In the September 2019 Board remand, the Board instructed the RO to seek medical records from the Veteran’s 1984 to 1987 active service period. The RO searched for all outstanding service treatment records (STR) and service personnel records (SPR). The National Personnel Records Center (NPRC) provided the RO all available STR and SPR for the Veteran. The records provided include reports of some of his service medical examinations, including his enlistment examination in October 1983. The Veteran’s 1983 enlistment examination report is the only available medical record addressing his condition around the time of his 1984 to 1987 active service period. The assembled records thus provide little information about the condition of his feet during his earlier service period. With regard to his 1989 to 1993 active service period, however, his claims file contains treatment notes and the separation examination report. Those records provide information about foot injuries and about the condition of his feet at separation. The Veteran had injury to the bottom of his right heel in October 1991 and injury to the bottom of his left great toe in 1992. At separation in 1993, on his medical history he marked no for history of foot trouble. The examiner marked normal for the condition of his feet. The information at separation is significant, direct evidence that the 1991 and 1992 injuries were not followed by chronic or recurrent symptoms or problems. The Veteran’s claims file does not contain information recorded during the years immediately following his later service period. Several years later, from 2002 forward, he reported problems with his toenails, without mentioning pain or problems involving the muscles or joints in his feet. In 2010 he reported bilateral foot pain with onset several years earlier. Several years before 2010, however, is still about ten or more years after his 1993 separation from service. In 2012 and 2016 VA examiners opined against a nexus between service events and current foot disorders, including plantar fasciitis. Those opinions are based on and consistent with the assembled evidence and are fairly persuasive. The greater persuasive weight of the evidence is against continuity or other connection between the disorder manifested by intermittent plantar pain years after service and the plantar surface injuries during service. The Board denies service connection for a current bilateral foot disorder, including plantar fasciitis. (Continued on the next page)   The Board has considered the lay statements of the Veteran asserting his foot disabilities are related to injuries in service. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a relationship between foot conditions and in-service injuries is outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Accordingly, the Board has placed greater probative weight on the opinions expressed in the 2012 and 2016 examinations. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals James L. March Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kunz, Kirsten 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.