Citation Nr: 21063258 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-47 183 DATE: October 13, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for temporomandibular joint disorder (TMJ) is granted. REMANDED Entitlement to a compensable disability rating for the Veteran's service-connected allergic rhinitis is remanded. FINDINGS OF FACT 1. The Veteran's diagnosed sleep apnea is at least as likely as not etiologically related to her active-duty service. 2. The Veteran's diagnosed TMJ disability is at least as likely as not etiologically related to her active-duty service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for establishing entitlement to service connection for TMJ have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1993 to August 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Court of Appeals for Veteran's Claims (Court) has held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). During her May 2021 hearing, the Veteran indicated that she is currently working full time as a schoolteacher. As the evidence of record does not suggest the Veteran is unemployable due to her service-connected disabilities the Board will not address entitlement to TDIU. Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Sleep Apnea The Veteran seeks service connection for her sleep apnea disability which she contends originated in service. The medical evidence confirms that the Veteran has a current diagnosis of sleep apnea. See June 2018 VA Treatment. The central issue that must be resolved is whether the Veteran's current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's service treatment records (STRs) contain multiple complaints regarding sleeping issues during service. Specifically, the Board notes that the Veteran reported difficulty sleeping in a 2006 post-deployment health reassessment. Further, a July 2007 treatment note where the Veteran reported a history of waking up multiple times per night gasping for air and was given a provisional diagnosis of sleep apnea. The Veteran additionally had an April 2012 sleep study which documented several apneas and diagnosed the Veteran with an upper airway resistance syndrome. The sleep study continued indicating that the Veteran's diagnosis was a precursor to sleep apnea. Finally, a March 2013 treatment record documented that the Veteran had a medical history of sleep apnea. The Veteran was afforded a September 2013 VA examination wherein the examiner indicated that the Veteran never had a diagnosis of sleep apnea. However, the examiner does not comment on the medical records from the Veteran's STRs cited above, as such the Board affords this opinion little weight. The Veteran submitted a private August 2014 Disability Benefits Questionnaire. The private examiner diagnosed the Veteran with obstructive sleep apnea and indicated that she had this diagnosis since her active-duty service and that she benefitted from CPAP therapy. Further, the private examiner noted that due to the Veteran's sleep apnea she experiences persistent daytime hypersomnolence, fatigue, and problems sleeping. Further, the Veteran submitted a July 2014 Diagnostic Polysomnography Report which indicated she was diagnosed with obstructive sleep apnea. The Veteran's son submitted an August 2014 lay statement wherein he reported that the Veteran snores and stops breathing in her sleep. The Veteran submitted an August 2014 lay statement wherein she reported that she used a CPAP machine and that sometimes, while sleeping, she would awaken because she could not breath. The Veteran was then provided with a June 2017 Acceptable Clinical Evidence (ACE) review regarding her sleep apnea disability. The reviewer stated that the Veteran was diagnosed with sleep apnea in July 2014 and that it was less likely than not related to her active duty complaints of snoring and upper airway resistance. The rationale provided was that the Veteran's sleep apnea was more likely caused by her post-service weight gain as obesity is listed as a major risk factor on UpToDate. During her May 2021 Board hearing, the Veteran testified about the symptoms she experienced while in service. Additionally, the Veteran reported that she had been using a CPAP machine since 2005. The Board has considered the Veteran's statements, and the statements of her family in support of her claim. They are competent to report symptoms, what they directly observed, and what others have told them because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, they are not competent to offer an opinion as to the etiology of the Veteran's current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran, and her family, testified as to her symptoms while in active-duty service, including gasping for breath while sleeping, snoring, and use of a CPAP machine. The Board finds the above testimony to be both competent and highly credible. Given the VA examiners' opinions, the Veteran's competent lay statements, the private examiner's opinion, and the Veteran's STRs, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran's sleep apnea is at least as likely as not etiologically related to her active-duty service. The evidence is thus at least evenly balanced as to whether the Veteran's current disability is related to the in-service reports of sleep disorders. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the Veteran's sleep apnea is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TMJ The Veteran seeks service connection for TMJ which she contends originated in service. The medical evidence confirms that the Veteran has current diagnosis of TMJ. See April 2018 VA Primary Care Visit. The central issue that must be resolved is whether the Veteran's current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's STRs contain multiple complaints of jaw pain. Specifically of note the Veteran reported chronic jaw pain since a 2001 motor vehicle accident. A November 2010 treatment record noted the Veteran had a chronic history of TMD and the Veteran was prescribed a night guard for her jaw. Additionally, the Board notes a January 2011 dental treatment record where clicking, popping, and tenderness of the TMJ is reported. A December 2010 dental treatment note indicated that the Veteran experienced TMJ pain for 10 years and that she was prescribed the night guard in 2004 but discontinued its use in 2010 due to not receiving any relief or exacerbation from the night guard. Finally, the Board notes that in a November 2011 Memorandum the Veteran was diagnosed with TMJ and referred for surgical treatment. The Veteran was initially afforded a September 2013 VA TMJ conditions examination. The examiner reported that the Veteran did not now, nor had she ever had a TMJ condition. Further, in a June 2017 ACE review, the reviewer opined that the Veteran was not diagnosed with TMJ during her 2013 examination, which indicated that she did not have it at that time. The Board affords these opinions little weight, as the above noted medical history clearly documents that the Veteran was diagnosed with, complained of, and was treated for TMJ while in active-duty service. During her May 2021 Board hearing, the Veteran testified that she had experienced jaw pain since service which has continued to present day. The Veteran further testified that they gave her mouthguards while she was in service. The Board has considered the Veteran's lay statements in support of her claim. She is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that she experienced jaw pain since in service, which has persisted ever since. Additionally, the Veteran has reported that she has sought treatment for these conditions since leaving service. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran's lay statements are consistent with other medical evidence in the record. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ongoing pain to be at least as probative as the above-noted examiner's findings, as the Veteran is truly the only person capable of such observation. Given the Veteran's competent lay statements, the Veteran's VA treatment records, and the Veteran's STRs, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran's TMJ disability is at least as likely as not etiologically related to her active-duty service. The evidence is thus at least evenly balanced as to whether the Veteran's current disability is related to the in-service reports of TMJ. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the Veteran's TMJ is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Allergic Rhinitis The Board notes that the last VA examination in connection with the Veteran's service-connected allergic rhinitis disability was conducted nearly 7 years ago in December 2014. The Veteran has provided testimony in her May 2021 Board hearing which indicated that her disability may have worsened since this last examination. Given the length of time since the last examination, and the potential worsening of the Veteran's claimed condition, a remand is warranted for a contemporaneous examination. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination, with a qualified examiner, to determine the current nature and severity of her allergic rhinitis. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.