Citation Nr: 21063937 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-31 356A DATE: October 18, 2021 ORDER Entitlement to service connection for left hand tendonitis is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current left hand tendonitis is related to an in-service injury. 2. The evidence is at least evenly balanced as to whether the Veteran's current OSA had its onset in service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left hand tendonitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to March 2002 and from February 2003 to August 2004, including combat service as discussed below. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for left hand tendonitis and OSA. In June 2014, the Veteran filed his notice of disagreement, was issued a statement of the case in august 2014, and in September 2014 he perfected his appeal to the Board. In June 2018, the Board remanded the Veteran's claims for additional evidentiary development and a Supplemental Statement of the Case was issued by the RO in August 2019, continuing the denial of service connection for left hand tendonitis and OSA. In a January 2020 decision, the Board denied both claims. Thr Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In April 2021, pursuant to a Joint Motion Remand (JMR), the parties vacated and remanded the Board's January 2020 decision denying service connection for left hand tendonitis and OSA and remanded those claims for action. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38C.F.R. §3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F. 3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred inservice. 38 C.F.R. § 3.303 (d). Combat The parties to the JMR agreed that the Veteran was awarded the Combat Action Badge on June 7, 2006, citing a June 2006 letter from the Army. The Board is unable to locate this document in the claims file but in any event finds that the Veteran engaged in combat with the enemy, for the following reasons. The Veteran's DD Form 214 confirms that his military occupational specialty was in Motor Transport. Military personnel records indicate the Veteran was a Platoon leader and driver during convoy operations in Iraq in support of Operation Iraqi Freedom. He also volunteered as a gunner on the gun truck. In November 2004, the Veteran was awarded an Army Commendation Medal for his service in convoy operations, including continuously volunteering as a gunner for the gun truck and putting himself in harm's way. A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). In an August 2021 statement, the Veteran reported that during his deployment to Iraq, he came under attack by small arms fire, and injured his left hand while attempting to reload his weapon. The Veteran is competent to report his exposure to incoming enemy fire in service and there is no evidence that explicitly contradicts his reports. Therefore, the Board finds that his reports of combat exposure in service are credible and that there is sufficient evidence that the Veteran participated in combat. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F. 3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154 (b)). Moreover, the fact that the claimed cause of a disability is established by lay statements does not prevent a veteran from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves, 682 F. 3d at 999. Congress enacted the combat statute because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves v. Shinseki, 682 F.3d at 998 (citing H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Moreover, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. Accordingly, section 1154(b) allows a combat veteran to use "satisfactory lay or other evidence" to establish that he incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. 38 U.S.C. § 1154 (b). The statute, moreover, specifically provides that the VA must "resolve every reasonable doubt in favor of the veteran" when determining whether a combat veteran incurred a particular disability in service. Id. However, 38 U.S.C. § 1154 (b) does not eliminate the need for evidence of a nexus; it merely reduces, for Veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Entitlement to service-connection for left hand tendonitis. The Veteran asserts that his left hand pain is related to an injury he suffered during combat operations in Operation Iraqi Freedom. In a June 2019 VA examination report, a VA examiner noted the Veteran's diagnosis of left hand tendonitis. Therefore, he meets the current disability requirement. In an August 2021 statement, the Veteran reported that he came under small arms fire in Iraq and, while trying to clear his weapon "of a jammed round," he injured his left hand requiring 13-14 stitches and immediately told to return to work. He indicated that he has been experiencing symptoms from this injury to his left hand for several years. As noted above, the finding that the Veteran engaged in combat is significant because, as noted above, it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F. 3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154 (b)). There is nothing in the record that explicitly contradicts the Veteran's account of his left hand injury during service and his reports are consistent with the evidence of record and the circumstances of his service. 38 C.F.R. § 3.303 (a) (each disabling condition for which a Veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The Board therefore finds that the Veteran suffered an injury to his left hand during service, thus the in-service injury requirement is met. Moreover, the fact that the claimed cause of the Veteran's left hand tendonitis, i.e., an injury suffered while loading a weapon, is established by his lay statements, does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves, 682 F. 3d at 999. The dispositive issue is whether there is a nexus between the Veteran's current left hand tendonitis and his in-service hand injury. In a May 2019 statement, the Veteran's wife indicated that the Veteran has experienced problems with his left hand since he returned from the Middle East in 2004. She stated that, since his separation from service, the Veteran has constantly experienced pain and numbness in his fingers over the years which he has learned to live with, as he was trained to do in the military. During a June 2019 VA examination, the Veteran reported to the VA examiner that the pain in his left hand began during service, after he suffered an injury clearing a munitions jam from his weapon and stated that, since that injury, he has continued to experience pain in his left hand since his discharge from the military. However, the VA examiner found that the Veteran's current left hand tendonitis was less likely than not caused by his in-service injury or otherwise related to his service. The examiner reasoned that the Veteran's February 2001 enlistment examination did not indicate any underlying abnormalities of the left hand and there was no evidence in the Veteran's service treatment records (STRs) of any in-service evaluations or complaints related to left hand pain. The examiner concluded that a nexus was difficult to ascertain without in-service documentation. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran's left hand tendonitis is related to service. As indicated by the parties to the JMR, the June 2019 VA opinion that the Veteran's left hand tendonitis is not related to service is of little, if any, probative value. Specifically, the VA examiner failed to consider competent and credible evidence of the Veteran's report of his in-service injury and the continuation of those symptoms in the years since service. Buchanan v. Nicholson, 451 F. 3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence). Given the lack of an adequate medical opinion, there is no contrary evidence of record. At this point, the Board could remand the claim for an additional VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence of record is sufficient to adjudicate the claim. Given the current diagnosis of left hand tendonitis, the combat rules as interpreted in Reeves, and the Veteran's competent and credible statements of a left hand injury in service and continuing pain since service, entitlement to service connection for left hand tendonitis is warranted. To the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan, 451 F. 3d.at 1335. Entitlement to service connection for OSA. After a June 2016 private sleep study, the Veteran was diagnosed with OSA. He has thus met the current disability requirement. In a June 2016 statement, the Veteran indicated that, in 2002, during service, he was told by his peers that they had observed that his breathing got worse at night and, when he slept, he often sounded like he was choking. The Veteran recalled that, in 2003, his sleeping habits had worsened and he began to experience daily fatigue. The Veteran stated that his peers continued to complain about his snoring and told him that it sounded like he was losing his breath during the night. The Veteran also indicated that he sought medical treatment for his sleep difficulties during service, but was told that his symptoms were due to the common cold or allergies. The Veteran has reported suffering from snoring during service, stating that his fellow servicemembers complained of his snoring, and his wife also indicated that she noticed such symptoms. The Veteran and his wife are competent to report observable symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). There is no indication in the evidence of record that the Veteran or his wife lack credibility, therefore their statements as to the incurrence of the Veteran's snoring are afforded significant probative value. Thus, the in-service incurrence element for service connection has been satisfied. The remaining issue is whether the Veteran's current OSA is related to or had its onset during his military service. The Veteran's service treatment records (STRs) do not include complaints or treatment for OSA. An October 2005 VA Memo from a Veteran's Service Representative (VSR) included a notation that the Veteran was suffering from a sleep disorder. In a September 2014 statement, the Veteran's wife indicated that, after the Veteran returned home from service, she noticed that he had developed snoring and breathing problems. She noticed that, during the night, the Veteran would stop breathing between snores and often sounded like he was choking or gasping for air. She also stated that the Veteran told her that he had sought medical attention for his sleep difficulties while he was in service, but he was unable to get treatment for his symptoms. In a September 2014 buddy statement, one of the Veteran's fellow servicemembers stated that he slept below the Veteran in a bunk bed during service and, during service, when the Veteran slept, it often sounded like he was having breathing problems. The Veteran's bunkmate recalled the Veteran snoring loudly and gasping for air. He stated that the Veteran's snoring became more and more "abnormal," with his peers ultimately advising him to seek help. March 2016 and July 2016 private treatment records indicate that the Veteran reported to his clinician that he began having sleep problems during service. The private physician documented that the Veteran reported "witnessing apneas" and experiencing very loud snoring. The Veteran also stated that his sleep difficulties caused him to be extremely fatigued throughout the day. The Veteran conveyed to the clinician that his wife told him that he sometimes jumps up in the middle of the night gasping for air. Evidence against the Veteran's claim includes a June 2019 VA examination report. During that examination, the Veteran reported to the examiner that he began developing sleep difficulties, including hypersomnolence, in 2003 and sought treatment for his symptoms at a military clinic. STRs indicate the Veteran was diagnosed with insomnia in November 2004. The Veteran also reported to the examiner that that he continued to have sleep difficulties after separating from the service. Upon evaluation, the VA examiner concluded that the Veteran's sleep apnea was less likely than not incurred in or caused by service. The examiner noted that the Veteran's February 2001 enlistment examination or post-deployment questionnaires from 2002 through 2004, did not mention any underlying problems related to sleep problems, fatigue, sleepy hygiene or episodes of hypersomnolence. Although the examiner acknowledged that the Veteran's STR's indicate that he was diagnosed with insomnia in November 2004, he noted that all records relating to the Veteran's current symptoms of sleep apnea are post-service, therefore, a nexus could not be established. For the following reasons, the evidence reflects that the Veteran's current OSA had its onset or was related to service. As noted by the parties to the JMR, the June 2019 VA medical opinion is inadequate and of little, if any, probative value, as the examiner primarily relied on the absence of evidence the Veteran was treated for OSA or related sleep symptoms in his STRs. See Dalton v. Nicholson, 21 Vet. App. 23 (2007)(examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). Further, the examiner did not consider or take into account the Veteran's lay statements or the statements submitted by his fellow servicemember and his wife, as to his sleep disturbances during service and his continuous sleep disturbance symptoms, since leaving service. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Given the lack of an adequate medical opinion, there is no contrary evidence of record and the Board is thus left with competent and credible lay evidence that the Veteran's OSA began during service and the symptoms of OSA have persisted since his separation from service. While the Board could remand the claim for an adequate medical opinion, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38C.F.R. §3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Moreover, the above evidence is sufficient to decide the claim. Given the competent and credible lay evidence as to the Veteran's sleep apnea symptoms in and since service and the inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran's sleep apnea had its onset in service. 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 sleep apnea is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. To the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006). Moreover, sleep apnea is the type of disability for which lay evidence can support a claim for service connection. Maples v. Wilkie, No. 18-2016 (Vet. App. Feb. 11, 2019) (mem dec) (Falvey, J.) (lay evidence can be sufficient to support a claim for service connection for sleep apnea). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.K. Donaldson, 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.