Citation Nr: 21077285 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 14-10 736 DATE: December 29, 2021 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for Wegener's granulomatosis (also known as granulomatosis with polyangiitis (GPA)) is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for osteoarthritis of multiple parts is remanded. FINDING OF FACT Sleep apnea did not develop in service and is not otherwise causally related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1980 to November 1992. The Department of Veterans Affairs (VA) is grateful for her service. The Veteran testified before the undersigned Veterans Law Judge of the Board of Veterans' Appeals (Board) at a video conference hearing conducted in April 2017. A transcript of the hearing is of record. The Board remanded the appealed claims in February 2018 and December 2020, and they now return to the Board for further review. As the Board noted in its February 2018 remand, although the Veteran's claim for service connection for a neck disability was finally denied prior to the appealed February 2011 VA Regional Office (RO) decision, in the course of appeal additional pertinent service treatment records were added to the claims file. Accordingly, this claim is reconsidered without any requirement to reopen. 38 C.F.R. § 3.156 (c). Following the Board's December 2020 remand, the Veteran was granted service connection for sinusitis and allergic rhinitis, left and right wrist disabilities, and low back disabilities. Hence, there remains no case in controversy as to the claims for service connection for sinusitis and allergic rhinitis, left and right wrist disabilities, and low back disabilities which were previously the subject of appeal and Board remand. The wrist disabilities were potentially the subject of remand based on the Board's open-ended remand with regard to osteoarthritis of any parts, but subsequent examination as supported by x-rays revealed absence of arthritis of the wrist, and the Veteran was nonetheless granted service connection for other wrist disabilities based on positive nexus evidence. Because the Veteran was granted service connection for all wrist disabilities found as supported by medical evidence, claims for service connection for disabilities of the wrists are no longer considered to be cases in controversy and hence are not before the Board. Entitlement to service connection for sleep apnea The Veteran contends, in effect, that she developed sleep apnea in service. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). At her April 2017 hearing, the Veteran testified that she had difficulties with sleep for which she sought treatment in 2007 or 2009 (although she expressed difficulties recalling), that she had undergone two sleep studies, and that she was prescribed use of a CPAP machine. In a November 2018 submission, the Veteran clarified that her claimed sleep disturbance and shortness of breath in 1994 were eventually diagnosed as sleep apnea when a sleep study was performed in 2010 and severe obstructive sleep apnea was diagnosed. She added that her initial claims were in both 1992 and 1994. A review of the record reveals that the Veteran previously claimed a sleep impairment in May 1994, when she informed, "I don't rest well at night," which implies both impaired sleep and resulting fatigue. When the Veteran's several claims at the time were addressed by a December 1994 rating action, a separate sleep disorder was not addressed. However, as discussed below, the weight of the evidence supports the conclusions that the Veteran's sleep difficulties in service or proximate to service were associated with her service-connected posttraumatic stress disorder (PTSD) and that her claimed sleep apnea is distinct from that psychologically associated sleep impairment. To the extent the Veteran's service-connected posttraumatic stress disorder (PTSD) impacts sleep, this has not been medically recognized as a separate disorder distinct from her service-connected PTSD, for which the Veteran has been rated 100 percent disabled since October 2009. Hence, the Board concludes that such psychologically associated sleep impairment is part of the service-connected psychiatric disability, with sleep impairment notably recognized as symptomatic of psychiatric disability within the General Rating Formula for Mental Disorders, upon which the assigned 100 percent rating for PTSD is based. See 38 C.F.R. § 4.130 (Sleep impairment listed among symptoms for a 30 percent rating within General Rating Formula for Mental Disorders). Included among records submitted in October 2010 is a July 2010 private sleep study with a diagnosis of severe obstructive sleep apnea. Upon VA examination in January 2019, the examiner noted the Veteran's self-report of sleep problems, fatigue, and shortness of breath in service. However, the examiner noted that the Veteran was diagnosed with sleep apnea in 2009 based on a sleep study in 2009. The examiner then stated, "I did not find evidence of a diagnosis of [obstructive sleep apnea] during service, or of signs/ symptoms pathognomonic for sleep apnea during the service." The examiner then noted that the Veteran's BMI was 25 upon service discharge and was 33 at the time of the sleep study 17 years later, and stated, "The 2 most well-recognized risk factors for sleep apnea are increasing age and weight." On these bases, the examiner opined that it was not at least as likely as not that the Veteran's sleep apnea was incurred in or caused by service. Upon VA examination in March 2021 (with the examination report dated in April 2021), the examiner noted the Veteran's reported history of a sleep condition beginning in 1990 when the Veteran was getting ready to be deployed, when the Veteran was not able to rest or sleep and had anxiety. The Veteran now reported current symptoms consisting of trying to catch her breath while laying down, with resulting fatigue and lack of sleep. The examiner also reviewed a polysomnogram in April 2021 revealing mild sleep apnea. The examiner noted that the Veteran took Clonazepam for a sleep condition, and that the Veteran also required a breathing assistance device. The March 2021 examiner reviewed the Veteran's claims file and noted a May 1994 submission claiming impaired sleep with fatigue, with the sleep impairment attributed to anxiety. The examiner noted that the Veteran's body mass index (BMI) was 25 upon service discharge but was 33 at the time of a sleep study 17 years after service. The examiner also noted the prior examiner's observation that two well-recognized risk factors of sleep apnea were age and obesity. The March 2021 examiner concluded, "There is no compelling reason to suspect that the claimant's service connected nighttime anxiety, with poor sleep habits and subsequent fatigue[,] was an early indicator of the obstructive sleep apnea she was diagnosed with 17 years later, at a time when her BMI was 33 and in the obese range." On these bases, the examiner opined that it was not at least as likely as not (less than 50 percent probability) that the Veteran's sleep apnea was incurred in service or caused by an in-service injury, event, or illness. While the Board does not question that the Veteran sincerely believes her claimed sleep apnea began in service or is otherwise related to service, such questions of onset or etiology of sleep apnea, which require medical expertise and evaluation for diagnosis and evaluation of causes and onset, are beyond the ambit of lay knowledge. The Veteran, as a layperson, has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Hence, her opinions about onset or etiology and a relationship to service for her sleep apnea are not competent evidence to support her claim. The Board finds the balance of the evidence of record consistent with and supportive of the March 2021 VA examiner's opinion, and finds the opinion well-supported by medical knowledge of sleep apnea and facts of record. The examiner implicates post-service weight gain and age as causal factors of the Veteran's sleep apnea, noting that sleep apnea was not diagnosed until 17 years after service, and attributing the Veteran's sleep difficulties during service to other causes. The opinion is competent, credible, and entitled to substantial weight as rationally based on the record and medical knowledge. Contrary competent, credible evidence supporting onset in service or a causal link to service has not been presented equal to or outweighing the examiner's opinion and supporting evidence. Accordingly, the Board finds the weight of the evidence against service connection for sleep apnea. 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for Wegener's granulomatosis (also known as granulomatosis with polyangiitis (GPA)) is remanded. The most recent VA examiners have clarified that the Veteran's claimed condition was Wegener's granulomatosis, or granulomatosis with polyangiitis (GPA). Hence, the Board has so recharacterized the claimed condition. The Veteran is currently service connected for allergic rhinitis and sinusitis, as may pertain to the Wegener's granulomatosis claim. In its December 2020 remand, the Board instructed that the Veteran was to be examined by an ENT (ear, nose, and throat doctor) or other appropriate specialist to address the nature and etiology of claimed Wegener's disease. Upon VA examination in March 2021 (with the examination report dated in April 2021), the examiner informed that she was not an ENT or specialist, but informed that "Wegener's granulomatosis was not caused by any sinus disability, allergic rhinitis, or other nasal disability." On this basis, she opined that it was not likely that the Veteran's Wegener's granulomatosis was proximately due to or the result of a service-connected condition. However, the Board had required that the etiology opinion be provided by an ENT or other appropriate specialist, and hence the opinion does not substantially fulfill the Board's requirements. The Veteran was afforded additional VA examination in July 2021 (with the examination report dated in August 2021) also addressing Wegener's granulomatosis, but while the examiner carefully reviewed the record and conducted examinations from ENT and vascular perspectives, assessing allergic rhinitis, Wegener's granulomatosis, and history of acute sinusitis, the examiner failed to provide any etiology opinions or opinions about aggravation of Wegener's granulomatosis. The examiner also failed to consider the subconjunctival hemorrhage for which the Veteran was treated in service, and whether that may be interrelated to current Wegener's disease, as the Board had required in its December 2020 remand instructions. Regrettably, remand is thus again required for an ENT or other appropriate specialist to address questions of a link between service or service-connected disability and claimed Wegener's granulomatosis, including substantial fulfillment of still relevant prior Board remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). 2. 3. Entitlement to service connection for a neck disability is remanded; entitlement to service connection for osteoarthritis of multiple parts is remanded. VA examinations have been conducted including most recently in July 2021 (with reports dated in August 2021) for claimed neck disability and osteoarthritis in other parts including the hands and shoulders. However, the Board expressly instructed the examiners to consider the Veteran's self-report that she used ibuprofen for treatment of her knee in years following service and this helped with her other conditions. While this was noted in instructions to examiners, there is no indication in the examination reports that the examiners considered this self-report by the Veteran in their opinions and supporting rationales. Accordingly, regrettably, remand is required for addenda to these examinations, to substantially fulfill the Board's remand instructions. Id. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any unobtained VA and pertinent private treatment records, with the Veteran's assistance and authorization, as appropriate. 2. Thereafter, obtain a new VA examination by an ENT or other specialist with sufficient expertise to address the nature and etiology of the Veteran's claimed Wegener's granulomatosis. It should be noted that the prior examination was inadequate in part because an ENT or other appropriate specialist did not conduct the examination. The claims file must be reviewed including service and post-service treatment records, and any necessary tests or studies should be conducted. The examiner must also document and consider the Veteran's own statements regarding her disability, since a layperson is competent to address symptoms as experienced and her recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should consider whether subconjunctival hemorrhage in the Veteran's eyes for which she was treated in service may have been interrelated with current Wegener's disease. The examiner should also note that the Veteran was not afforded x-rays upon VA examination in September 1993 because she was then six months pregnant, and hence absence of sinus x-rays at that time should not be considered as evidence of absence of sinusitis at that time. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Wegener's granulomatosis developed in service or is otherwise causally related to service. The examiner should also separately opine whether it is at least as likely as not (50 percent probability or greater) that Wegener's disease was caused or aggravated (worsened) by any sinus disability, allergic rhinitis, or other nasal disability related to service. Separate opinions with separate findings and rationales must be provided for causation and aggravation. For such questions of aggravation, the examiner must consider whether there was worsening, even if only temporary, over the course of claim. The examiner must provide complete rationales to support all opinions provided. 3. Then, addenda should be obtained to the VA examinations conducted July 2021 (examination reports dated in August 2021) for claimed neck disability and osteoarthritis of each hand and each shoulder, with new opinions addressing questions of etiology related to service. The examination addenda should be informed by review of past and current VA and private examination and treatment records. The examiners should be advised that the prior examinations were inadequate because the examiners did not provide rationales to support their opinions which included consideration of the Veteran's self-report that she used ibuprofen for treatment of her knee in years following service and that this helped with her other conditions. The examiners should also note that the Veteran was not afforded x-rays upon VA examination in September 1993 because she was then six months pregnant, and hence absence of x-rays at that time should not be considered as evidence of absence of arthritis or other joint disability at that time. Separately for the neck disability and osteoarthritis of each hand and each shoulder, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in service or is otherwise related to service, and, separately, whether it is at least as likely as not (50 percent or greater probability) that arthritis of that part was present to a disabling degree within the first post-service year. In providing the rationales (explanations supported by facts and medical knowledge), the examiners must explicitly consider the Veteran's self-report that she had a daily treatment regimen of ibuprofen for her knee in years following service and this helped with her other conditions. The examiners must provide complete rationales to support all opinions provided. (Continued next page) 4. Thereafter, readjudicate the claims the subject of remand. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.