Citation Nr: 21067635 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-61 982 DATE: November 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDING OF FACT The Veteran's OSA is etiologically related to his time on active duty. CONCLUSION OF LAW The criteria to establish service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to April 1993. This case was previously before the Board. Most recently in July 2021, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. 1. OSA A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that his OSA symptoms began in service and have continued to date. See August 2015 Notice of Disagreement (NOD). The Veteran has a diagnosis of OSA. See August 2021 VA examination report. Therefore, the key issue in this case is whether the Veteran's OSA began during active service or is otherwise related to service. On VA examination, the Veteran stated that his OSA symptoms began during active duty. See August 2021 VA examination report. He also stated that during service he snored loudly, and he was often joked and talked about due to his loud snoring and breathing by fellow soldiers. His fellow soldiers told him that he was choking while sleeping, and they would always wake him up or turn him over. See August 2015 NOD. The Veteran stated that he did not realize his symptoms during service were a problem due to his sleeping schedule and environment while in the field. It was only years after service, once his wife continued to tell him he was choking in his sleep and snoring, did he realize this was a problem. At this point he was diagnosed by VA healthcare providers. Id. Here, the Veteran has provided competent lay statements regarding his sleeping behavior indicating that he has experienced OSA symptoms, including excessive snoring and choking during sleep, since service. Based on the unique facts of this case, to specifically include the Veteran's competent and credible report of in-service symptoms, and the medical evidence considering such symptoms in support of a post-service diagnosis of OSA, the benefit sought is granted based on in-service incurrence. See 38 C.F.R. § 3.303(d). While the August 2021 VA opinion noted the Veteran's assertions that he began experiencing symptoms of OSA during service, the reviewing clinician appears to simply dismiss these assertions because there was "no evidence of the presence of sleep apnea during service." See August 2021 VA opinion. However, the Veteran is competent to report that he experienced these observable symptoms during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His statements are credible and entitled to probative weight. Thus, the Board finds that the opinion rendered by the August 2021 VA clinician is incomplete and insufficient for purposes of adjudicating the issue on appeal. After a careful review of the evidence, the Board finds that it is at least as likely as not that the Veteran's OSA, although not formally diagnosed until after service, was incurred during active service. In reaching this conclusion, the Board finds the Veteran's statements describing his apnea symptoms competent, credible, and highly probative of the fact that the Veteran's OSA sleep symptoms started in service and continued through his actual diagnosis following service. The same symptoms reported by the Veteran were later confirmed through a sleep study to be manifestations of OSA. Additionally, the Veteran contends that his OSA is secondary to his service-connected posttraumatic stress disorder (PTSD). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As noted, the Veteran has a diagnosis of OSA. The Veteran is currently service connected for PTSD. See September 2013 rating decision. Accordingly, the first and second Wallin elements are met. The Veteran submitted a May 2016 statement from a private doctor, Dr. N.D. She stated that the Veteran's OSA is caused by or a result of his PTSD. She reasoned that his PTSD, including his nightmares, exacerbates his OSA. See May 2016 Dr. N.D. nexus statement. Thus, Dr. N.D.'s medical opinion provided a causal link between the Veteran's service-connected PTSD and his OSA. Based on the foregoing, the Board finds that service connection is warranted for OSA both a direct or secondary basis. The evidence shows that the Veteran's OSA was incurred during active service and has continued to present; moreover, there is evidence of record establishing a link between the Veteran's OSA and his service-connected PTSD. Accordingly, the Board finds that a grant of service connection is warranted for OSA. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Hearing Loss Historically, the Board first remanded this case in January 2019 for a new examination and opinion regarding the etiology of the Veteran's hearing loss. Specifically, the VA examiner was to "consider the Veteran's in-service reports of ear pain, his lay assertions regarding the onset of his hearing loss, and the fact that he is service-connected for tinnitus based on conceded noise exposure." See January 2019 Board remand directives. The Veteran has since attended VA examinations in November 2019 and September 2021. Neither examination report addressed the Veteran's in-service reports of ear pain, his lay assertions regarding the onset of his hearing loss, or the fact that he is service connected for tinnitus based on conceded noise exposure as required by the January 2019 Board remand. See November 2019 VA examination report; see also September 2021 VA examination report. For reference, the Veteran complained of an earache while in service in March 1986. See service treatment records (STRs). He was granted service connection for tinnitus based on a March 2014 VA examiner's positive nexus opinion. See March 2014 VA examination report; see also May 2014 rating decision. Thus, the Board finds that remand is required as there has not been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his hearing loss. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's hearing loss. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following: Is it at least as likely as not (a 50 percent probability or more) that the Veteran's hearing loss was incurred in or is otherwise related to his time on active duty, to include conceded noise exposure therein? In doing so, the clinician is to discuss (1) the March 1986 in-service complaint of ear pain, (2) the Veteran's lay assertions regarding the onset of his hearing loss, and (3) the fact that he is service connected for tinnitus based on conceded noise exposure. The reviewing clinician should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page) 3. Thereafter, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.