Citation Nr: 21064938 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 11-01 631 DATE: October 22, 2021 ORDER Service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for a heart disability remanded. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, he had symptoms of obstructive sleep apnea during his second period of active duty and ever since service separation. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served in the Army Reserve, with active duty from June 1982 to June 1985 and from April 2008 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009 and May 2010 rating decisions of a Department of Veterans' Affairs (VA) Regional Office (RO), the agency of original jurisdiction. The case was previously before the Board in May 2016, January 2019, and December 2020. In May 2016, the Board remanded the claim in response to the Veteran's request to reschedule his Board hearing. VA correspondence dated October 9, 2018 and October 25, 2018 notified the Veteran that the Board had scheduled a videoconference hearing for November 8, 2018 at a VA RO. However, the VA records reveal that the Veteran did not appear for the hearing and thereafter requested that his claims be decided on the evidence of record. Therefore, his request was deemed withdrawn. In January 2019, the claims were again remanded, in part, to obtain VA medical opinions addressing the etiology of the Veteran's sleep apnea and heart disorders. Thereafter, February 2020 VA medical opinions were found inadequate by the Board in its December 2020 remand, which returned the claims to the RO requesting new VA opinions. The Veteran underwent VA sleep apnea and heart examinations in March and April 2021, respectively, and the examination reports are of record and have been reviewed. The Board finds there has not been substantial compliance with its December 2020 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Accordingly, the claim for entitlement to service connection for a heart disability must, again, be remanded as detailed below. Nevertheless, as the decision herein grants the Veteran's claim for service connection for sleep apnea in full, the Board finds that the Veteran is not prejudiced by the Board's adjudication of that claim at this time. As phrased on the title page herein, the Board has recharacterized the issue of entitlement to service connection for sleep apnea to "obstructive sleep apnea" to reflect the Veteran's currently diagnosed disorder. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Service Connection Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (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) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). Presumptive service connection provisions under 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service and "continuous" symptoms since service is an alternative means of linking a claimed disability to service but is only available for the "chronic diseases" specifically enumerated in 38 C.F.R. § 3.309(a), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As sleep apnea is not among the enumerated diseases, the presumptive service connection provision under 38 C.F.R. § 3.303(b) is not for application. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Sleep Apnea The Veteran has a current diagnosis of obstructive sleep apnea (OSA) since at least October 2009. See VA Sleep Study Report dated October 13, 2009. The Veteran asserts that his OSA onset during his active duty service in 2008. See Appeal to Board of Veterans' Appeals received January 11, 2011. After a careful review of all the evidence, lay and medical, the Board finds that symptoms of the currently diagnosed OSA had their onset during active duty service. The Veteran's service treatment records do not reflect symptoms, diagnosis, or treatment of OSA. Nevertheless, post-service private treatment notes recorded approximately four months after his separation from active duty service in October 2008 reflect that the Veteran reported snoring and gasping at night, fatigue during the day, and his physician noted that sleep apnea was a consideration. See Treatment notes of A.R., M.D. dated February 18, 2009. In October 2009, the Veteran underwent a VA sleep study. The diagnosis was significant obstructive sleep apnea. See VA IC/Polysomnography (Sleep Study) Consult dated October 13, 2009. A statement by the Veteran's spouse K.H. received in December 2009 describes how she personally observed the Veteran's sleeping habits that changed while he was on active duty at Fort Knox from April to October 2008. K.H. noted that the Veteran started to snore loudly and became more restless in his sleep. She added, "A few times, I noticed that he stopped breathing," and on more than one occasion she had to "wake him up to make sure that he was ok." K.H. said the Veteran "never had these problems before." See Correspondence from K.H. received December 30, 2009. Pursuant to the Board's December 2020 remand, the Veteran was afforded a VA sleep apnea examination in March 2021. The VA examiner opined that the Veteran's OSA is less likely than not directly related to the Veteran's active duty service from April to October 2008 because there is no evidence of OSA arising during that period, and "OSA is not an acute event and is a gradually developing condition." Further, the examiner opined that the Veteran's OSA did not preexist active duty service in 2008 because the Veteran endorsed no sleep symptoms in a post-deployment health assessment in October 2008, and the disorder was not aggravated during active duty because there is no evidence of sleep symptoms during the Veteran's April to October 2008 active duty period, and his OSA was not diagnosed until 18 months later. See VA medical opinion dated March 1, 2021 at pg. 2. The March 2021 opinion reflects numerous deficiencies. First, the fact that a clinical diagnosis was not rendered during service is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Indeed, diagnosis of a disorder typically follows onset of symptoms, as the examiner himself acknowledged in his opinion, and as appears to have happened here. Second, the examiner either did not review or disregarded the lay statements of the Veteran and his spouse regarding symptoms that included snoring loudly, restless sleep, and cessation of breathing while the Veteran was on active duty at Fort Knox from April to October 2008, symptoms both the Veteran and his wife are competent to describe. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Third, the examiner incorrectly observed that the Veteran's OSA was diagnosed 18 months after his separation from active duty in October 2008, which is contradicted by evidence of record showing that the clinical diagnosis was made in the October 2009 VA sleep study. Lastly, the VA examiner noted that he was unable to locate the October 2009 sleep study in the claims file, which is suggestive that his review of the file was cursory at best, which, alone, renders the opinion of little or no probative value. See Nieves-Rodriguez, 22 Vet. App. at 304 (2008) (explaining that, in general, a medical report cannot merely draw conclusions from data; rather, it should include "a reasoned medical explanation connecting the two"). Based on the foregoing, the March 2021 VA opinion is neither competent, credible, nor probative, and the Board therefore finds the opinion inadequate. While an addendum medical opinion could be requested to again consider the question of etiology of the Veteran's currently diagnosed OSA, the current evidence is sufficient to decide the claim. On appeal, the Veteran emphasized that he experienced loud snoring, restless sleep, and cessation of breathing during active duty service in 2008, and that he continues to experience these symptoms since their onset during his active duty service. See, e.g., VA sleep apnea examination dated February 10, 2020 at pg. 2. The Veteran and his spouse are competent to report that the Veteran experienced sleep disturbances, including snoring, restlessness, and stopped breathing. See Layno, supra. Furthermore, the Board finds the statements of the Veteran and his spouse with respect to such symptoms both competent and credible. In fact, there is nothing in the record that contradicts their lay assertions. The Board additionally notes that proof of symptoms in service that are later diagnosed may be evidence of service "incurrence." See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), (d); Jandreau, 492 F.3d at 1377 (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The finding that the Veteran has had OSA symptoms, particularly to include sleep impairment and nighttime breathing difficulties dating from active service, as well as the competent and credible statements of his snoring and sleep impairment that continues to this day, is supportive of the claim overall, because it tends to show that the same symptoms that began in service were the basis for the later diagnosed OSA. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent as to in-service and post-service symptoms). Accordingly, based on the competent and credible lay and medical evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that his OSA had its onset during active service. See 38 C.F.R. §§ 3.102, 3.303(d). Given the Board's grant of service connection on a direct basis based on the Veteran's symptoms of OSA during service and since separation from active duty, all other theories of entitlement are rendered moot. REASONS FOR REMAND Heart Disability Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, in its December 2020 remand, the Board specified that VA obtain opinions addressing the etiology of the Veteran's heart disability from a "VA cardiologist." See Board Remand dated December 2, 2020 at pg. 5. However, VA obtained the opinions from a doctor whose specialty, "Physiatry," appears to fall outside the discipline of cardiology. While the examiner may be competent in his field, his opinion reflects multiple deficiencies that necessitate yet another remand of this already protracted claim, confirming the Board's judgment that a VA cardiologist must provide the requested opinions. Regarding a direct nexus between the Veteran's currently diagnosed heart disorders and active duty service, the examiner acknowledged that a February 2009 echocardiogram reflects abnormalities that included "mild tricuspid regurgitation" and "trace mitral valve regurgitation," but instead of addressing whether these abnormalities are related to the Veteran's currently diagnosed heart disorders, which, notably, include tricuspid valve regurgitation, and the approximate onset of these abnormalities in the context of his active duty service, the examiner concluded that these findings do not indicate a heart disability because the 2009 echocardiogram report does not include the phrase "heart disability." See VA medical opinion dated April 29, 2021 at pg. 4. In addition to this nonsensical conclusion, the VA examiner acknowledged "frequent APBs with rare PVCs" shown in February 2009 Holter monitor readings but provided no assessment as to whether this evidence reflected a heart ailment or whether it had any relevance to the Veteran's' currently diagnosed heart disorders. Lastly, the examiner's opinions regarding whether the Veteran had a heart disability that preexisted service are inadequate. The examiner discounted an April 2008 pre-deployment examination indicating heart murmur because murmur was not indicated in a 2009 private evaluation or a 2020 VA examination; however, the examiner did not explain why greater weight was accorded the later findings except to note that in his opinion the 2008 finding was in error without explaining why the finding was in error. For the foregoing reasons, the April 2021 VA opinions addressing the etiology of the Veteran's heart disabilities are inadequate. See Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, remand is necessary to obtain from a VA cardiologist, adequate opinions addressing the etiology of the Veteran's service-connected heart disorders. See Barr, supra; Stegall, supra. The matter is REMANDED for the following action: 1. Implement the Board's decision herein granting service connection for obstructive sleep apnea. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Then, obtain opinions from a VA physician who is a CARDIOLOGIST as to the nature, extent, and etiology of the Veteran's heart disability(s). If the reviewing CARDIOLOGIST determines that an examination of the Veteran is necessary (including via telehealth interview, if an in-person examination is not deemed feasible), then such should be scheduled and all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. The examiner's review of the body of this Remand is strongly recommended to assist in avoiding errors that have rendered previous VA opinions inadequate and contributed to the already protracted claim period. Based on review of the pertinent evidence of record, the examiner must determine: (a) Whether there is clear and unmistakable (undebatable) evidence that the Veteran has a heart disability that pre-existed the Veteran's entry into active duty service in (1) June 1982 and/or (2) April 2008. (b) If so, then the examiner must determine whether there is clear and unmistakable evidence that the heart disability was not aggravated by such period(s) of active duty service. (c) For any heart disability that either did not clearly and unmistakably pre-exist service OR was not clearly and unmistakably aggravated by service, please state whether it is at least as likely as not (50 percent or more probability) that the heart disability is related to the Veteran's active duty service. **In providing these opinions, the examiner must address the Veteran's arguments. The record shows the Veteran complained of having chest pain on exertion and that he had a heart murmur at his April 2008 Pre-Deployment Health Assessment. He was given a stress test, which was reportedly negative. His October 2008 Post-Deployment Health Assessment showed the Veteran complained of having chest pain. In February 2009, he was given an echocardiogram and doppler examination, which showed mild tricuspid regurgitation, trace mitral valve regurgitation, and diastolic dysfunction. He was diagnosed with palpitations without significant dysrhythmia, and dyspnea. The Veteran asserts that the February 2009 echocardiogram shows he has a heart disability, which he argues manifested during his service, because they were not identified upon entrance. He asserts had he been given the appropriate testing at separation, then he would have been diagnosed with a chronic heart disability at that time. He argues that his long hours caused or aggravated his heart disability. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Thereafter, ensure that a VA physician who is a CARDIOLOGIST has provided the above requested opinions, that the examiner's signature on the opinions reflects that he or she is a physician who is a CARDIOLOGIST, and that he or she has substantially responded to the questions posed by the Board, and if not, take corrective action. 5. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.