Citation Nr: 21007433 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-29 379 DATE: February 9, 2021 ORDER New and relevant evidence having been presented, readjudication of the claim for service connection for plantar fasciitis is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for a heart disability is dismissed. REMANDED Entitlement to a disability rating in excess of 10 percent for hypertension prior to September 5, 2017, and to a compensable disability rating thereafter is remanded. Entitlement to a compensable disability rating for migraine headaches is remanded. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a left-hand disability is remanded. Entitlement to service connection for a right-hand disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for plantar fasciitis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is remanded. INTRODUCTION The Veteran served on active duty from October 1989 to October 2009. The Board observes that in August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. However, a transcript of that proceeding could not be obtained, as the recording was inaudible. The Veteran was notified of this discrepancy and offered another hearing; however, he declined in December 2020, and asked that his case be forwarded for decision. The Veteran previously submitted a claim for entitlement to service connection for plantar fasciitis which was denied in a November 2009 rating decision on the basis that the Veteran’s disability was not chronic in nature. The November 2009 rating decision became final because the Veteran did not timely appeal the claim within the appeal period. In connection with the Veteran’s claim for readjudication, he submitted more recent lay statements and treatment records from Tricare and the San Diego VAMC, which indicate he has continued to experience manifestations of foot pain and received ongoing treatment for plantar fasciitis. Thus, the Board finds sufficient new and material evidence has been received to readjudicate his previously denied claim. See 38 C.F.R. §§ 3.156 (d). FINDINGS OF FACT 1. Sleep apnea manifestations have been present since service. 2. In August 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he desired to withdraw his appeal for entitlement to service connection for a heart disability. CONCLUSIONS OF LAW 1. Obstructive sleep apnea was incurred in active service. 38 U.S.C. § 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 2. The criteria for withdrawal of the appeal for entitlement to service connection for a heart disability have been met. 38 U.S.C. 7105 (b)(2), (d)(5) (2012); 38 C.F.R. 20.204 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria-Service Connection Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (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). Burden of Proof In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends service connection is warranted for sleep apnea because it originated while he was serving on active duty. His service treatment records do not show he was ever treated for or diagnosed with sleep apnea in service; however, the Veteran has reported experiencing several manifestations in service, including headaches, daytime sleepiness, and fatigue. These symptoms were witnessed by his spouse, as well as his loud snoring and periods of apnea. The Veteran has also provided a medical opinion from his treating Pulmonologist in March 2016. In sum, the physician chronicled the Veteran’s medical history, and noted sleep apnea is a condition that often comes on slowly. The physician concluded the Veteran’s OSA more likely than not was incurred during his period of active military service. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). In this case, the Veteran has reported that he experienced several sleep-related manifestations in service, which have persisted ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. Further, his reports have been corroborated by his spouse. In part, this appeal turns on whether there is a nexus between the Veteran’s current obstructive sleep apnea and his in-service manifestations. The Veteran has competently and credibly reported that he initially experienced daytime sleepiness since service, and his spouse has indicated she witnessed loud snoring and periods in which the Veteran would stop breathing. Further, the Veteran’s private physician has indicated his sleep apnea symptoms more likely than not was incurred in service based on his medical history. Accordingly, a nexus to service is established. In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran’s current sleep apnea and his in-service manifestations is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his sleep apnea disability. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. 20.204 (2020). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. 20.204 (a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. 20.204 (b). During the Veteran’s above-noted August 2019 Board hearing, he indicated he wished to withdraw his pending appeal for entitlement to service connection for a heart disability. Accordingly, the Board does not have jurisdiction to review this aspect of the Veteran’s appeal, and the issue must be dismissed. REASONS FOR REMAND While further delay is unfortunate, the Board finds additional development is required before the remaining claims are decided. Increased Rating Claims The Veteran most recently underwent a VA examination to assess his PTSD, hypertension, and migraine headaches in September 2017. During his August 2019 Board hearing the Veteran asserted his hypertension and migraine headaches had worsened. The Board also observes the Veteran has asserted experiencing additional PTSD manifestations since that time. As such, new examinations are necessary to determine the current severity of the disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Service Connection Claims In the course of this appeal period the RO has not obtained VA examinations or medical opinions addressing the Veteran’s multiple joint claims, vertigo, TBI, or plantar fasciitis. VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. A review of the Veteran’s outpatient treatment records from Tricare and the San Diego VAMC show he has reported ongoing diffuse joint pains, vertigo-type manifestations, trouble with memory, and ongoing heel and plantar foot pain. Additionally, the Veteran’s service treatment records show reports of diffuse joint pains, dizziness, and heel pain in service. Though the Veteran was not diagnosed with a TBI in service, during his August 2019 Board hearing the Veteran reported blast exposures during his deployment in Iraq. A review of the Veteran’s DD-214 shows he was awarded the Combat Action Badge for service in combat. Based on the foregoing, the Board finds VA examinations and medical opinions are warranted. TDIU Entitlement Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for a TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected. On remand, the RO should also obtain a medical opinion addressing the functional impairments caused by the Veteran’s service-connected disabilities. Accordingly, this case is REMANDED for the following actions: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected PTSD, hypertension, and migraine headache disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct any required testing or concludes any required testing is not necessary, he or she should clearly explain why that is so. 2. Also, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran’s diffuse joint pains of the left wrist, bilateral ankles, bilateral elbows, and bilateral hands, as well as his claims for vertigo, plantar fasciitis, and a traumatic brain injury. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed left wrist, bilateral ankle, bilateral elbow, bilateral hand, vertigo, plantar fasciitis, or traumatic brain injury at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. With respect to the Veteran’s claim for diffuse joint pain, the examiner must also state whether the Veteran’s symptom picture is sufficient to warrant a diagnosis of fibromyalgia, as the Veteran has confirmed service in the Southwest Asia theater of operations. The examiner(s) must specifically address the Veteran’s reports relative to the etiology of the claimed disabilities. In particular, the Veteran’s service treatment records show ongoing reports of diffuse joint pain in service, and he has also asserted his joint pains may be the result of either an anthrax inoculation or exposure to an improvised explosive device (IED) in service. With respect to the Veteran’s claims for vertigo and traumatic brain injury, his service treatment records show reports of dizziness and memory problems in service, and the Veteran has also asserted these conditions may be the result of his exposure to an IED. Further, the Veteran has reported ongoing heel pain since his time on active duty, which is also documented in service. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. 3. Finally, the RO should also obtain a medical opinion or opinions from an examiner or examiners with sufficient expertise to provide an assessment of the functional impairments caused by the Veteran’s service-connected disabilities. The examiner(s) should provide concrete examples of functional impairments caused by the Veteran’s service-connected disabilities, to include the medications taken therefor. The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. The examiner must discuss and consider the Veteran’s competent lay statements. In addition, the examiner should comment on whether there is a 50 percent or better probability that the Veteran’s service-connected disabilities, either alone or in concert, are sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.