Citation Nr: 21062364 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-46 602A DATE: October 7, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to an initial evaluation in excess of 20 percent from January 1, 2011 to January 27, 2017 for painful scars of left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, is denied. Entitlement to an initial evaluation in excess of 30 percent for painful scars of left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, his diagnosed obstructive sleep apnea began during his active duty service. 2. From January 1, 2011 to January 27, 2017, the Veteran had four painful scars of the left upper extremity, right lower extremity, and chest, status post skin cancer removals; none of the scars were unstable. 3. From January 28, 2017 to the present, the Veteran had six painful scars of the left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery; none of the scars were unstable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to an initial evaluation in excess of 20 percent from January 1, 2011 to January 27, 2017 for painful scars of left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Code 7804. 3. The criteria for entitlement to an initial evaluation in excess of 30 percent from January 28, 2017 to the present for painful scars of left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from December 1975 to December 1979 and from February 2003 to December 2010 with additional periods of service in the Air National Guard and Air Force Reserves. The Veteran died in June 2020. The appellant is the Veteran's surviving spouse, who was found to be a valid substitute. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction of the case is now before the RO in St. Petersburg, Florida. In the September 2013 rating decision, the RO, in pertinent part, granted service connection for skin cancer and assigned a noncompensable evaluation, effective January 1, 2011; and denied service connection for sleep apnea. The Veteran appealed for a compensable evaluation and service connection. During the pendency of the appeal, the RO issued a July 2017 rating decision, in pertinent part, granting a 20 percent evaluation for painful scars of the left upper extremity, right lower extremity and chest, status post skin cancer removals, effective January 1, 2011. Further, in a June 2018 rating decision, the RO granted a 30 percent evaluation for painful scars of the left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery. The Veteran had continued to appeal for a higher initial evaluation for painful scars of the left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). In a March 2020 rating decision, the Veteran was granted service connection for lumbar spondylosis, an issue that had been on appeal. As this issue has been resolved by a full grant of benefits, and the appellant has not submitted any documents indicating that she is not satisfied with the decision, the Board finds that the issue is no longer part of the current appeal. See 38 C.F.R. § 19.26(d). Following the April 2020 supplemental statement of the case, the appellant submitted additional evidence in support of her appeal. The Veteran filed his substantive appeal in September 2017. Accordingly, under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, this evidence is subject to initial review by the Board, because the appellant did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105(e)(1) (2018). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Entitlement to service connection for sleep apnea The Veteran asserted that he had sleep apnea symptoms during active duty service, that he was referred for an evaluation of those symptoms during service, and that following a sleep study, he was provided a diagnosis of obstructive sleep apnea during service. Furthermore, the Veteran reported that his sleep apnea symptoms persisted after service and his obstructive sleep apnea diagnosis was confirmed by his private treating physician in 2018. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The question before the Board is whether the Veteran's sleep apnea is etiologically related to his active duty service. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor, the Board finds that service connection for sleep apnea is warranted. The Veteran's service treatment records (STRs) during his first period of active duty service from December 1975 to December 1979 do not document any findings related to any complaints, treatment, or diagnosis for sleep apnea, or any other sleep problems. During the Veteran's second period of active duty service from February 2003 to December 2010, his STRs reflect that he first complained of sleep problems in 2009. According to a September 2009 Post-Deployment Health Assessment, the Veteran reported problems sleeping or still feeling tired after sleeping. A June 2010 STR documents that the Veteran complained of having problems getting restful sleep for the past year. The treating physician noted that the Veteran's wife said that the Veteran had been snoring and occasionally stopped breathing at night. The Veteran noted that he was having trouble getting restful sleep, was recorded tossing and turning, and was often tired during the day. The Veteran also reported that his mother had sleep apnea. The treating physician found that the Veteran had a lack of adequate sleep and that his symptoms were consistent with possible sleep apnea. The Veteran was sent for a sleep study for further evaluation. In a July 2010 Post-Deployment Health Assessment, the Veteran continued to report problems sleeping or still feeling tired after sleeping. In August 2010, the Veteran underwent a sleep study conducted at a private sleep lab. The polysomnography interpretation report provided the results of the sleep study. The analysis of the sleep study was that the Veteran had obstructive sleep apnea syndrome. In August 2013, the Veteran underwent a VA examination. After reviewing the August 2010 sleep study, the August 2013 VA examiner found that the results were inconsistent with obstructive sleep apnea. The August 2013 VA examiner found that the August 2010 sleep study failed to meet the diagnostic criteria as defined by American Academy of Sleep Medicine (2013). Overall, the August 2013 VA examiner determined that there was insufficient evidence to warrant or confirm a diagnosis of obstructive sleep apnea or its residuals. The August 2013 VA examiner concluded that the Veteran's subjective complaints were most likely than not the results of his hectic work schedule, traveling, crossing timelines, and sleep hygiene patterns. In April 2018, the Veteran underwent an at-home sleep study. The overall impression was mild obstructive sleep apnea. At a June 2018 private clinic visit, the Veteran reported having a history snoring, witnessed apnea, and waking up frequently during the night. He had excessive daytime sleepiness, and he fell asleep easily doing computer work. The Veteran's private treating pulmonologist, Dr. D.P., reviewed the April 2018 sleep study and diagnosed the Veteran with obstructive sleep apnea. In September 2018, the Veteran provided a Sleep Apnea Disability Benefits Questionnaire (DBQ) conducted by his private treating pulmonologist, Dr. D.P. The Veteran reported having difficulty sleeping and chronic fatigue in 2010 during active duty service, which persisted. Dr. D. P. found that the Veteran had symptoms attributable to sleep apnea, including persistent daytime hypersomnolence, continuous yawning throughout the day, and fatigue. Dr. D.P. continued to diagnose the Veteran with obstructive sleep apnea. In a November 2019 VA opinion, the VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by active duty service. In providing a rationale, the November 2019 VA examiner found that the August 2010 sleep study did not show sleep apnea, but the later sleep study in 2018 did show sleep apnea, however, this was after military service. Therefore, the Veteran's sleep apnea was less likely than not that it had its onset during or was causally related to events in service, to include documented in-service sleep complaints and assertions. In an April 2020 VA addendum opinion, the November 2019 VA examiner discussed the August 2013 VA examination findings, the lay statements attesting to the Veteran's sleep apnea symptoms during service, and the findings of the August 2018 sleep study. The November 2019 VA examiner noted that the Veteran's wife stated that the Veteran had snoring and apnea in 2010, but the sleep study at that time showed no obstructive sleep apnea. Further, the November 2019 VA examiner found that there were no STRs to support the Veteran's wife's lay statements concerning the Veteran's symptoms during service. The November 2019 VA examiner agreed with the August 2013 VA examiner's finding that there was insufficient evidence to diagnose or warrant obstructive sleep apnea, because the 2018 sleep study was the first one that showed obstructive sleep apnea and it was mild. Finally, the November 2019 VA examiner continued to opine that the Veteran's sleep apnea was less likely than not incurred in or caused by in-service complaints and assertions during service. In August 2020, the appellant submitted an opinion from the Veteran's private treating pulmonologist, Dr. D.P., who had been treating the Veteran since April 2018. After reviewing the Veteran's August 2010 sleep study, Dr. D.P. found that the Veteran's apnea-hypopnea index to be consistent with the diagnosis of obstructive sleep apnea and severe oxygen desaturation during the study. Upon reviewing the Veteran's pertinent in-service and post-service medical records, Dr. D.P. opined that it was more likely than not that had another sleep study been ordered at the time of the Veteran's VA examination for obstructive sleep apnea, it would have shown positive results for obstructive sleep apnea. The Board notes that the record does not dispute that the Veteran had a current diagnosis for obstructive sleep apnea. See September 2018 Sleep Apnea DBQ. Now, the Board recognizes that the record includes conflicting medical opinions concerning whether the Veteran's current obstructive sleep apnea was etiologically related to his active duty service. With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In this case, the Board finds that Dr. D.P.'s August 2020 private opinion is the most probative evidence regarding whether the Veteran had obstructive sleep apnea during active duty service. On that basis, Dr. D.P. reviewed the findings of the August 2010 sleep study, which was conducted while the Veteran was on active duty, and found that the results were consistent with the diagnosis of obstructive sleep apnea syndrome. By contrast, the findings of the August 2013 and November 2019 VA examiners, who are internal medicine and family medicine physicians, respectively, are outweighed by the expertise of Dr. D.P., a board-certified pulmonologist. Thus, the Board concludes that Dr. D.P.'s conclusion that the August 2010 sleep study did support a diagnosis for obstructive sleep apnea is a more persuasive determination. Moreover, the Board finds that the August 2013 and November 2019 VA examiners' conclusions did not sufficiently address the Veteran's consistent reports of symptoms associated with sleep apnea both during and shortly following his active duty service, as well as his assertions that those symptoms had persisted since service. Taking into consideration the totality of the evidence, including the STRs documenting symptoms of sleep problems in 2009 and 2010, the August 2010 sleep study diagnosing the Veteran's obstructive sleep apnea during active duty service, the lay reports attesting to the Veteran's continuous sleep apnea symptoms following service, and his current diagnosis for obstructive sleep apnea, the Board finds that resolving all reasonable doubt in favor of the Veteran, his obstructive sleep apnea began during active duty service. Therefore, the Veteran's service connection claim for sleep apnea must be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Evaluation 2. Entitlement to an initial evaluation in excess of 20 percent from January 1, 2011 to January 27, 2017 for painful scars of left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery 3. Entitlement to an initial evaluation in excess of 30 percent from January 28, 2017 to the present for painful scars of left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery The Veteran asserted that he warranted a higher initial evaluation for his painful scars of left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran's painful scars of left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, has been evaluated as 20 percent disabling, effective January 1, 2011, and 30 percent disabling, effective January 28, 2017, under 38 C.F.R. § 4.118, Diagnostic Code 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Diagnostic Code 7804 was not changed by the August 13, 2018 amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118., Diagnostic Code 7804, Note 1. If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Id. at Note 3. As a preliminary matter, the Board notes that the Veteran has been assigned a separate 10 percent evaluation for scars of the anterior and posterior of the left side of the neck under 38 C.F.R. § 4.118, Diagnostic Code 7800, for scar 5 or more inches (13 or more cm.) in length. Further, the Veteran has been assigned separate noncompensable evaluations for left lower extremity scar, status post skin cancer removals, right lower extremity scar, status post skin cancer removals, right upper extremity scar, status post skin cancer removals, and upper back hypopigmented patches, status post skin cancer removals, under 38 C.F.R. § 4.118, Diagnostic Code 7802, for superficial and nonlinear scar not of the head, face, or neck in an area or areas less than 144 square inches (929 square cm.). Finally, the Veteran has been assigned a separate noncompensable evaluation for linear scars of the left upper extremity and chest, status post skin cancer removals, under 38 C.F.R. § 4.118, Diagnostic Code 7805. These separate evaluations are not part of the current appeal. At an August 2013 VA examination, the VA examiner noted that the Veteran had two cancerous skin lesions removed from 2009 to 2011. Following an objective evaluation, the August 2013 VA examiner found that the Veteran had one scar located on his right lower chest in the midsternal area and measured 1.5 cm. in length and one scar located on his left elbow and measured 1.0 cm. in length. No facial disfigurement or limitations were noted. In an April 2014 Notice of Disagreement (NOD), the Veteran reported that he had more than five scars and that he had pain on examination. At a May 2017 VA examination, the VA examiner found that the Veteran had found painful scars of the trunk or extremities. One scar located on the upper left arm was slow to heal, tender and burned every day. One scar located on the left elbow/forearm was painful and sensitive to sunlight. One scar located on the center sternum was painful to touch. One scar located on the right shin continued to burn and was painful to touch. There were no scars of the trunk or extremities that were unstable, with frequent loss of covering of skin over the scar. At a March 2018 VA examination, the VA examiner found that the Veteran had four painful scars of the trunk or extremities. One scar located on the upper left arm was slow to heal, tender and burned every day. One scar located on the left elbow/forearm was painful and sensitive to sunlight. One scar located on the center sternum was painful to touch. One scar located on the right shin continued to burn and was painful to touch. None of the scars of the trunk or extremities were unstable, with frequent loss of covering of skin over the scar. The March 2018 VA examiner also found that the Veteran had two painful scars of the head, face, or neck. One scar was located on the anterior neck and one scar was located on the posterior neck. The Veteran had burning, itching, and tightness to the surgical scars and constant numbness to the posterior neck scars. None of the scars of the head, face, or neck were unstable, with frequent loss of covering of skin over the scar. Based on a careful review of all the subjective and clinical evidence, the Board finds that from January 1, 2011 to January 27, 2017, the Veteran does not warrant a higher 30 percent initial evaluation for painful scars of the left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, under Diagnostic Code 7804. In other words, during the relevant appeal period, the Veteran does not have five or more scars that are unstable or painful. Viewing the evidence in the light most favorable to the Veteran, the Board recognizes that in his April 2014 NOD, the Veteran reported having more than five scars and pain on examination. However, at his May 2017 VA examination, only four painful scars were identified and none of them were unstable. Therefore, the Board finds that there is no basis upon which to assign a higher 30 percent initial evaluation for painful scars of the left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, under Diagnostic Code 7804. Accordingly, the Board concludes that from January 1, 2011 to January 27, 2017, the Veteran's painful scars of the left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, are no more than 20 percent disabling. In addition, based on a careful review of all the subjective and clinical evidence, the Board finds that from January 28, 2017 to the present, the Veteran's painful scars of the left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, does not warrant a higher 40 percent initial evaluation under Diagnostic Code 7804. In other words, during the relevant appeal period, the Veteran does not have scars that are both painful and unstable. Rather, the clinical findings at both the Veteran's May 2017 and March 2018 VA examination show that none of the Veteran's painful scars were unstable, with frequent loss of covering of skin over the scar. Therefore, the Board finds that there is no basis upon which to award a higher 40 percent initial evaluation under Diagnostic Code 7804. Accordingly, the Board concludes that from January 28, 2017 to the present, the Veteran's painful scars of the left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, are no more than 30 percent disabling. In summary, the preponderance of the evidence weighs against finding in favor of the appellant's higher than 20 percent initial evaluation claim for painful scars of the left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, from January 1, 2011 to January 27, 2017, and her higher than 30 percent initial evaluation claim for painful scars of the left upper extremity, right lower extremity, chest, left anterior neck and left posterior neck, status post skin cancer removals and cervical spine surgery, from January 28, 2018 to the present. Therefore, the benefit-of-the-doubt rule does not apply, and the higher initial evaluation claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.