Citation Nr: 21007671 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-01 513 DATE: February 10, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED Entitlement to a compensable rating for the left wrist ganglion cyst is remanded. FINDING OF FACT The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. CONCLUSION OF LAW The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1988 to March 1993. He had additional non-qualifying service from May 1993 to March 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 and November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2020. The claims were remanded for additional development to include VA examinations and obtaining medical records. In May 2020 the RO requested an authorization to obtain medical records, however, the Veteran failed to return a completed form. In September 2020 a VA examination was conducted for the sleep apnea and wrist. However, the Board finds the VA examination for the wrist is inadequate and another remand is warranted. Thus, as it relates to the OSA, the Board finds that the AOJ substantially complied with the May 2020 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Entitlement to service connection for obstructive sleep apnea The Veteran claims his OSA is related to in-service insomnia complaints. Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service treatment records (STRs) for August 1988 reflected treatment for insomnia associated with a skin issue. Private treatment records from December 2008 to February 2009 reflect that the Veteran sought a consultation for sleep disturbance, reported insomnia since he was in the Navy, was diagnosed with insomnia and mild obstructive sleep apnea syndrome that was moderate in REM sleep, and was effectively treated with continuous positive airflow pressure (CPAP). A November 2010 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The VA examiner diagnosed the Veteran with sleep apnea. He noted the Veteran’s in-service diagnosis of insomnia secondary to skin condition symptoms but found onset of the Veteran’s sleep apnea to be after service. He opined that it was less likely than not caused by or related to Gulf War environmental exposure, and that it was not caused by or a result of insomnia during service because the in-service insomnia was not documented to be chronic and the sleep apnea diagnosis did not come until January 2009. Furthermore, he stated that the Veteran’s sleep apnea was more likely than not caused by or related to his developmentally narrow airway. In December 2010, Dr. R.K., the Veteran’s private treating physician, stated that the Veteran was being treated for obstructive sleep apnea syndrome with CPAP, had issues with insomnia dating back to the 1980s, and was not diagnosed with sleep apnea until January 2009. He stated that it was “within medical probability” that the Veteran had had sleep apnea since he was in his 20s because his insomnia symptoms had significantly improved since being on CPAP. A September 2020 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with obstructive sleep apnea. On September 24, 2020 the VA examiner opined the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. It was reasoned, “there is no evidence of an injury or event during service resulting in sleep apnea. The complaints of insomnia are not consistent with an injury or event during service.” A September 27, 2020, VA examination report by the same VA examiner opined the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. It was reasoned, Although the Veteran was not given a formal diagnosis of sleep apnea during his time in service, he is documented to have complained of insomnia during service. According to the Mayo Clinic (2019), insomnia is often a reported symptom of sleep apnea. He also reported additional symptoms of sleep apnea in his 2016 appeals testimony. He was referred for a sleep study in 2009 where he was subsequently diagnosed with obstructive sleep apnea and prescribed a CPAP for sleep. One study found that symptoms of sleep apnea and insomnia often co-exist together, and sleep apnea is believed to result in symptoms of insomnia (Ong & Crawford, 2013). Considering this information, it is not unreasonable to suspect that the veteran had sleep apnea at the time of his complaints of insomnia. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is related to service. In this regard there is a positive VA opinion of record as demonstrated in the September 2020 VA examination. Although the examiner initially offered a negative etiology opinion, a subsequent positive opinion with an adequate rationale was provided. Specifically, the examiner noted the Veteran’s in-service insomnia complaints, and concluded according to the Mayo Clinic (2019), insomnia is often a reported symptom of sleep apnea. As the evidence is in relative equipoise, the Board will resolve reasonable doubt in favor of the Veteran, and grant service connection for OSA. REASONS FOR REMAND Entitlement to a compensable rating for the left wrist ganglion cyst As noted above, this claim was remanded for a VA examination addressing the severity of the left wrist ganglion cyst. The Veteran’s left wrist ganglion cyst is rated under DC 7819 for benign skin neoplasms. See 38 C.F.R. § 4.118, DC 7819. The Veteran could receive a higher rating based on DC 7800 to 7805, 5214, and 5215. See 38 C.F.R. § 4.71a. The Veteran had two VA examinations. The October 2013 VA examination reflected range of motion testing, however the September 2020 VA examination did not. At the March 2016 Board hearing, the Veteran testified that his wrist is now getting sore, that he has numbness “every now and then,” that he now wears a wrist brace most times, and he has a bump that gets bigger. He also testified the pain in his wrist is sore with certain movements. The Board finds the September 2020 VA examination is inadequate as the examiner failed to include the requirements under Correia v. McDonald, 28 Vet. App. 158, 166 (2016). Under Correia, VA orthopedic examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. In this case the September 2020 VA examiner did not address range of motion testing. Therefore, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain any ongoing VA or private treatment records. Should they exist, associate them with the claims file. 2. Schedule the Veteran for an examination in order to determine the current severity of his left wrist ganglion cyst disability. The examiner should interview and examine the Veteran, conduct all indicated evaluations, studies, and tests deemed necessary, and offer a rationale for any opinion expressed. The examiner must consider the Veteran’s reports of symptoms, to include, the testimony from the March 2016 Board hearing. The claims file should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. a.) The examiner should describe in detail the appearance of the cyst, including any scars or disfigurement resulting from the cyst. b.) In order to comply with the Court’s precedential decision in Correia v. McDonald, 21 Vet. App. 158 (2016), the examiner must test and record the range of motion for BOTH wrists in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. c.) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. d.) The examiner should address whether the recorded pain, flare-ups, and functional limitations are associated with the Veteran’s service-connected left wrist ganglion cyst or with another condition. e.) Additionally, the examiner should determine whether the Veteran has ankylosis of the left wrist. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. To the extent that telehealth technology permits an alternative to an in-person examination, such opportunity is fully acceptable in lieu of an in-person examination. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.