Citation Nr: 21071497 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-38 284 DATE: November 30, 2021 ORDER Entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The Veteran's left shoulder disability was incurred in-service. 2. The Veteran's sleep apnea was incurred in-service. CONCLUSIONS OF LAW 1. The criteria service connection for a left shoulder disability have been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria service connection for sleep apnea have been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1993 to November 1997. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).). 1. Entitlement to service connection for a left shoulder disability At the onset, the Board notes that there is no dispute that the Veteran has a current left shoulder disability, acromioclavicular joint osteoarthritis, as noted in a May 2015 VA examination. Similarly, there is no dispute that the Veteran was treated in November 1996 for a left shoulder pain that lasted two weeks and was diagnosed as left shoulder strain by the in-service clinician. Thus, the Board observes that the only dispute is centered around whether there is a relationship (i.e. nexus) between this November 1996 incident and the Veteran's current diagnosis for acromioclavicular joint osteoarthritis. In weighing the evidence, the Board first notes that the VA examiner opinion from May 2015 is of little probative value as the examiner did not address the Veteran's lay statements concerning the context of his left shoulder injury in 1996. Instead, the examiner drew conclusion from the lack of medical treatment records. An inference that the Court of Appeals for Veteran's claims (Court) has held is improper in Savage v. Gober, 10 Vet. App. 488, 496 (1997). In Savage the Court held that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. While the VA examiner's conclusion is ultimately flawed based on this improper inference, he did find that the Veteran's "x-ray showed a finding of a possible remote healed fracture of the anterior/inferior glenoid rim, which if present would be compatible with a history of an anterior dislocation of the shoulder." Thus, despite the inadequacy of the opinion, the Board finds this piece of evidence to be informative on the issue of a potential relationship between the disability and service. Turning to the Veteran's April 2021 hearing, the Board observes that the Veteran testified, in sum, that he has been suffering from the symptoms of left shoulder pain starting in service and continuing to the present day. In weighing the Veteran's statement, the Board notes that the Veteran is competent to assert the presence of symptoms subject to lay observation (i.e. pain). The Veteran is also highly credible in this regard as his service treatment records report a two-week period of chronic left shoulder pain which was ultimately diagnosed as shoulder strain as recorded in a November 1996 service treatment note. Given the fact there is no adequate negative opinion of record, the Veteran's testimony that he has continued suffer from this left shoulder disability following an incident in service, and the x-ray finding which showed a possible remote healed fracture, the Board finds that service connection is warranted. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra. 2. Entitlement to service connection for sleep apnea At the onset, the Board notes that there is no dispute that the Veteran has a current diagnosis of sleep apnea as noted in a February 2016 VA treatment note. Turning to an inservice incurrence, the Board notes that the Veteran has provided testimony from his wife who observed the Veteran's symptoms of breathing difficulty and snoring while in service. Similarly, the Veteran testified that his fellow service member would make light of the Veteran's repeated snoring and gasp for air while sleeping. Furthermore, the Veteran described period of excessive tiredness during his waking hours. The Veteran's service treatment records include a notation that he had trouble with sleep in an August 1997 "Report of Medical History." Considering the foregoing, the Board finds that the Veteran experienced symptoms of snoring, gasping for air, and difficulty with sleep while he was on active duty. The only remaining issue is whether the Veteran's sleep difficulty in service is related to his current sleep apnea, i.e. a nexus. Regarding nexus, the Board notes that no VA examination was provided to the Veteran. However, in the Veteran's April 2021 hearing, he testified, in sum, that he has been suffering from the symptoms of sleep apnea starting in service and continuing to the present day. In weighing the Veteran's statement, the Board notes that the Veteran is competent to assert the presence of symptoms subject to lay observation (i.e tiredness and concerns about snoring and gasping for air by his fellow soldiers). The Veteran is also highly credible in this regard as his VA treatment records document ongoing complaints of sleep difficulty: Outside of the clinical evidence, the Board was also provided testimony in April 2021 from his partner at the time of his active service wherein she testified that the Veteran stopped breathing during the night and would have to be shaken awake and that these episodes occurred during the Veteran's active duty and worsened following his separation. Given, the Veteran's service treatment records which document sleep difficulties, the statement from third party observations of the Veteran's sleep difficulty, and the credible statements of the Veteran regarding the continuing symptoms since his separation from service. The Board finds that service connection is warranted. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra GAYLE E. STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Acosta, 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.