Citation Nr: 21064419 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-07 807 DATE: October 20, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The most probative evidence shows that the Veteran's sleep apnea began during service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1959 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), the agency of original jurisdiction (AOJ). This matter was previously before the Board in April 2018 at which time the Board denied the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims ("the Court"). In March 2019, the Court granted the parties' joint motion for remand (JMR), vacated the Board's April 2018 decision, and remanded the claim back to the Board for further development. Thereafter, the Board remanded this matter for additional development in July 2019, October 2020, January 2021, June 2021, and August 2021. The claim is now back before the Board. Entitlement to service connection for obstructive sleep apnea Service Connection Service Connection is granted for disabilities resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (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 making its decision, the Board must consider all the evidence of record, including medical evidence and lay evidence, and make appropriate determinations of competence, credibility, and weight. Washington v. Nicholson, 19 Vet. App. 362 (2005). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis Because the Board is granting service connection based on the Veteran's in-service diagnosis and treatment of throat abscesses, the Board will not address in depth any evidence that the Veteran's sleep apnea is caused by exposure to exotic disease, ticks or parasites or is secondary to his service-connected disabilities. The Veteran was diagnosed with obstructive sleep apnea during a sleep study in November 2007 and prescribed a CPAP machine. Therefore, the first element of service connection, a current disability, is established. Symptoms of severe snoring, witnessed apneas, awakening headaches, and periodic leg movements were noted in the sleep study report. A history of tonsillectomy was also noted. As to the second element required to establish service connection, in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records do not note a diagnosis of obstructive sleep apnea. Service treatment records do indicate that the Veteran was diagnosed with, and treated for, throat adhesions in April 1959, May 1960 (specifically diagnosed as peritonsillar abscess), and October 1970. The Veteran has asserted that his sleep apnea is due to scarring and "loose tissue" caused by these throat abscesses. A January 1979 record notes ear, nose or throat trouble, including a history of throat infections. An August 1964 in-service examination report notes a history of tonsillectomy at age 9. The Veteran's service treatment records do not include a discharge examination. The Veteran's claim was denied in April 2013 without a VA examination and with a finding that the evidence does not show an event, disease or injury in service and that no link between sleep apnea and military service was found. The explanation noted in the notification letter sent to the Veteran was, "We received your medical evidence which discusses the symptoms of your medical condition." The Veteran submitted a timely Notice of Disagreement, stating that he had several episodes of soft palate abscess in the back of his throat during service. He did not know the cause and described these as severe, painful, and debilitating. He stated that after experiencing the abscesses, he began to store a lot, which he had never done before. He later complained later to his doctor that he was tired all the time, and was awakening at night due to respiratory disruption; and sleep apnea was suspected, then confirmed by a sleep study. He stated that he believes that scar tissue in his throat caused by the in-service abscesses distorted his soft pallet, causing him to snore and blocking his airway during sleep. The Veteran was first afforded a VA examination for sleep apnea in October 2016. The report was prepared after review of the available records, without an in-person or a video telehealth examination. Examination of the Veteran was determined to not be required as service treatment records were silent for sleep apnea and the examiner found that history from the Veteran and physical examination of the Veteran would not change that fact and thus would not change the opinion. The examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran's sleep apnea disorder is due to his military service duties and activities. The examiner stated that throat abscesses, in and of themselves, do not lead to signs and symptoms of sleep apnea. The examiner stated that sleep apnea is an anatomical/physiological disorder most commonly caused by airflow obstruction from the oropharynx to the lungs. This can be caused by enlargement of the neck muscle mass or weakness of the posterior pharynx muscles. The examiner noted the Veteran's weight gain. In 1964, he weighed 166 lbs. In 2016, he weighed 274 lbs. The examiner stated that the weight gain could have contributed to the enlargement of the neck and chest mass, predisposing him to the development of sleep apnea. The RO continued the denial of the Veteran's claim. In his appeal, the Veteran reiterated that his sleep apnea is caused, at least in part, by several episodes of soft palate abscesses during service. He began to snore after these episodes and did not snore before they occurred. He stated that after service, years later, his private family doctor noted "abnormal loose tissue" in the back of his throat and scar tissue from the throat abscesses. He was then diagnosed with sleep apnea. He stated that he his sleep apnea began during service and progressed in severity, leading to a diagnosis. He stated that he was never checked for sleep apnea while he was on active duty. In April 2018, the Board denied the Veteran's claim, finding the October 2016 opinion was based on an adequate rationale, which the Board found persuasive. The Board found that sleep apnea was not manifest during active service and that the preponderance of the evidence failed to establish that it is etiologically related to service. The Board observed the Veteran's report of throat infections and abscess is shown by his treatment in service but found that his report of experiencing snoring since those events is not shown. Moreover, even if the report of in-service snoring were to be accepted, the Board found that there is no competent evidence indicating that his sleep apnea is attributable to any residual of those events nor any actual evidence of current scarring or distorted tissue. The Board noted that the examiner reviewed the evidence of record and adequately considered the credible lay statements and reported symptom manifestation history. The Board stated that the lay evidence does not constitute competent medical evidence and lacks probative value. The Board found the preponderance of the evidence was against the claim. The parties filed a joint motion for remand. In March 2019, the Court of Appeals for Veterans Claims issued an order granting the parties' Joint Motion for Remand and remanding. The JMR determined that a remand was necessary because the Board erred by failing to provide an adequate statement of reasons or bases to support its finding that VA's duty to assist had been satisfied. 38 U.S.C. § 5103A. The JMR noted that the record shows that the Veteran reported that he experienced soft palate abscesses during service, began to snore after having a series of abscesses, and believes his throat was scarred and distorted by his abscesses and that the distorted tissue caused him to snore and blocked his airway. Additionally, the record shows that the Veteran reported that his "family doctor noted abnormal loose tissue in the back of [his] throat as well as scar tissue that originated from the throat abscesses." While the Board relied on an October 2016 VA medical opinion to satisfy VA's duty to assist, that opinion stated only that "[a]bscesses are infections that [are] transient events that are treated with incision and drainage and or antibiotics . . . [and]in and of themselves, do not lead to the signs and symptoms of sleep apnea." The opinion does not address the Veteran's theory that his current sleep apnea is etiologically related to loose tissue or scarring that resulted from his in-service soft palate abscesses, or treatment thereof. The Court noted that no examination has been provided to determine if the Veteran, in fact, has loose tissue or scarring in the back of his throat. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Court found that the Board clearly erred by failing to assist the Veteran in obtaining evidence to substantiate his claim based on this theory, as the Board did not ensure that an appropriate medical examination or opinion was obtained that specifically addressed the Veteran's theory. In July 2019 the Board remanded the Veteran's claim for a VA examination to determine the etiology of the Veteran's sleep apnea, to include whether loose tissue and scarring from in-service throat abscesses caused snoring and airway blockage. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). In January 2020, after review of the Veteran's file, and without an in-person or virtual examination, a VA examiner opined that the Veteran's sleep apnea is less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner noted that service treatment records are silent for sleep apnea or any indicators of sleep apnea such as snoring during his period of active duty service. As such, no nexus was established. The Veteran submitted a statement in September 2020 again stressing that he had several episodes of soft palate abscesses while on active duty and that he believes surgical draining of these abscesses and trauma from the abscesses themselves caused scar tissue and loose tissue at the rear of his throat that in turn led to sleep apnea. He stated that when he was diagnosed, he was told that he may have had sleep apnea for years. In October 2020, the Board remanded the Veteran's claim pursuant to Stegall v. West, 11 Vet. App. 268 (1998), finding the January 2020 examiner did not adequately address the Veteran's theory that his in-service abscesses caused scarring that in turn caused his sleep apnea. The Board also noted there was no discussion of the Veteran's lay reports. Further the examiner did not address literature submitted as to higher rates of sleep apnea in Air Force members. In January 2021, the Board again remanded for additional development, noting that in a January 2021 brief in support of the appeal, the Veteran's service representative provided excerpts of medical literature addressing a correlation between chronic pain and insomnia/sleep disorders and obstructive sleep apnea and chronic widespread pain, raising a secondary service connection claim. In February 2021, a VA examiner reviewed the record without conducting an in person or virtual examination and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no diagnosis during service. Also, the time of the sleep study, the Veteran had a BMI above 25 in either the overweight or obese category which is a majority cause of sleep apnea. The examiner found that therefore any other causes are less likely than not the cause of sleep apnea. The examiner found it was less likely than not that the Veteran's sleep apnea was secondary to a service-connected condition. The rationale was that there is an association between chronic pain and sleep apnea but not a causative relationship. The Veteran submitted a statement in March 2021 indicating that his recent VA "examinations" were conducted by telephone and that he has never had a comprehensive throat examination by a VA physician. He further stated that sleep apnea was not "well understood as a medical condition" while he was on active duty and was not recognized as a medical condition until 1965. In June 2021, the Board remanded for a new examination and opinion, providing the following summary of the case. The Board observed that the April 2018 Board denial relied on an October 2016 VA examination which opined that the throat abscesses treated in-service were caused by infections and do not lead to sleep apnea. The opinion did not address the Veteran's theory that the infections caused loose tissue and scarring in his throat and this contributed to his sleep apnea. The JMR notes that no VA examination determined if there is loose tissue or scarring. As such, the Board found that another VA examination was warranted to determine the etiology of the Veteran's sleep apnea, to include whether loose tissue and scarring from in-service throat abscesses caused snoring and airway blockage. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). In addition, the Board noted that the January 2020 VA examiner did not address the Veteran's statement about having loose tissue and scarring from throat abscesses. Further, the October 2020 VA examiner indicated that there is "no direct connection" suggesting throat infections lead to distortions of the pharynx and larynx areas, but this was based on a review of the records, not an examination of the Veteran. The Board found that it was also unclear whether the October 2020 VA examiner's opinion is that a distortion of the pharynx and larynx by throat infections is a medical impossibility, or only not in the Veteran's case. The Board also noted that the February 2021 VA examiner opined that there is only an association between pain and sleep apnea, and not a causal relationship, with insufficient explanation. In addition, the Board found the VA examiners provided an insufficient discussion of the Veteran's lay statement that he began to snore after his in-service throat abscesses. The Veteran was afforded a VA examination in August 2021 which consisted of a telephone interview without in person or virtual examination. The Veteran contended that throat ulcers caused floppy tissue that caused or contributed to sleep apnea. The Veteran respectfully asked how the examiner can see his throat via telephone. The examiner responded that a physical examination is limited to visualization of the posterior oropharynx, which is already of record and would not yield additional information. The examiner opined that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The rationale was that per the interview, the Veteran stated that he knew he didn't snore prior to the abscesses 1963-1975 because he was sleeping in barracks and no one ever complained of him snoring, whereas after that they did. While the Veteran's statement was taken as true, the examiner found it does not provide objective data to support that the Veteran's obstructive sleep apnea must have begun during those years. The examiner stated that snoring is not diagnostic of sleep apnea. Snoring is common, occurring in 44 percent of males who are between 30 and 60 years of age in the general population. Occasional snoring is almost universal. With regard to Veteran's concern about floppy tissue, the fiberoptic nasopharyngoscopic examination per ENT showed normal larynx, no lesions and a large tongue, low palate. Per review of medical literature, crowded oropharyngeal airway, large neck and/or waist circumference are common physical findings in patients with OSA. As an initial matter, the Board notes that the Veteran has not been provided with a physical examination specifically addressing his contention that he has scarring and "loose tissue" from his documented in-service throat abscesses. The August 2021 examiner relied on the November 2013 ENT examination for his conclusion that such physical examination was not warranted. However, the November 2013 ENT examination notes no masses, no lesions, large tongue, and low palate but does not address the issue of scar tissue or otherwise damaged tissue due to recurrent throat abscesses and treatment thereof. The Board notes that the Court was aware of the ENT's examination when it granted the JMR and remanded for an examination addressing the Veteran's theory that his current sleep apnea is etiologically related to loose tissue or scarring that resulted from his in-service soft palate abscesses, or treatment thereof. The JMR noted that no examination had been provided to determine if the Veteran, in fact, has loose tissue or scarring in the back of his throat. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Court found that the Board clearly erred by failing to assist the Veteran in obtaining evidence to substantiate his claim based on this theory, as the Board did not ensure that an appropriate medical examination or opinion was obtained that specifically addressed the Veteran's theory. The Board therefore finds that the evidence review and phone interviews were not in substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In weighing the evidence, the Board finds the examinations and medical opinions of record are inadequate due to the examiners' failure to adequately address the Veteran's contentions and statements. The examiners largely dismissed the Veteran's reports of symptoms and history, and relied heavily on the lack of an in-service diagnosis of sleep apnea. The Board notes that reliance on the absence of diagnosis or treatment of sleep apnea is uniquely misplaced on the facts of this case. A medical opinion based solely on the absence of documentation in the record is inadequate, if it does not take into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). Here, as the Veteran stated, he was never tested for sleep apnea during service. In fact, sleep apnea was not recognized as a diagnosis until 1965, five years after the Veteran's first throat adhesion was diagnosed. Further, VA did not recognize sleep apnea as a disability until 1996. Therefore, a diagnosis of sleep apnea would not be likely to appear in the Veteran's service treatment records and absence of such cannot be afforded any weight. The examinations and medical opinions also failed to substantially comply with the prior remands. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the medical examinations and opinions of record are entitled to low probative weight. The Board therefore finds that in the present case, a remand to obtain a more adequate and complete nexus opinion amounts to avoidable delay without benefit to the Veteran, which the Court has advised is to be avoided. Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Board is able to decide the merits of this appeal based upon a review of the evidence of record. The Board must consider whether a Veteran is entitled to service-connected compensation based on all theories reasonably raised by the record. Moody v Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). This includes the Veteran's theory that his sleep apnea is related to his in-service throat abscesses. The Veteran is considered competent to report his observable symptoms of sleep apnea in service and continuing after discharge. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to report that he did not snore prior to the in-service events and began to snore afterward. Snoring is noted as a symptom of sleep apnea in the private treatment records that resulted in a sleep study to diagnose sleep apnea. The Board finds the Veteran's statements to be credible as his statements have been consistent throughout the course of the appeal and supported by his service treatment records. Therefore, these statements are entitled to high probative value. The Board notes that the previous finding that the Veteran's lay statements do not constitute competent medical evidence ignores that the Veteran's lay statements are nonetheless evidence that must be factored into the analysis of whether the Veteran's sleep apnea is attributable to his in-service throat abscesses or scarring or distorted tissue caused thereby. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board also notes the Veteran's MOS was veterinary specialist. Thus, while not a medical doctor, the Veteran has a medical background and training that exceeds that of a typical lay person. The Board finds that the Veteran's service treatment records, private medical records, and lay statements show that it is "at least as likely as not (50 percent probability or greater)" that the Veteran's in-service throat abscesses, and/or treatment therefore resulted in symptoms of sleep apnea that were later diagnosed by a medical professional. No alternative cause as described by medical examiners or in cited medical journals has been specifically related to the Veteran. Further, while at least one VA examiner pointed to obesity as a cause of the Veteran's sleep apnea, this ignores the fact that the Veteran has competently and credibly stated that his symptoms began after treatment for documented throat abscesses during service from 1959 to 1970, years prior to the onset of obesity. In summary, the Board finds that the Veteran competently and credibly reported the onset of symptoms of sleep apnea during service following documented treatment for throat abscesses and continuity of symptoms since service, which were then diagnosed by a medical professional. No other purported cause has been shown to be related to the Veteran's specific circumstances. Accordingly, as the evidence is at least in equipoise, the Board will give the benefit of the doubt to the Veteran and find that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.