Citation Nr: 21011362 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-41 870 DATE: March 1, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED Entitlement to service connection for right foot degenerative joint disease (DJD) is remanded. Entitlement to service connection for left foot DJD is remanded. FINDING OF FACT The Veteran’s OSA is attributable to service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 3.306, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to November 1974. By way of procedural history, the Board notes that a November 2018 Board decision found that the Veteran filed a timely substantive appeal following the October 2012 statement of the case. Therefore, the above issues are now before the Board for adjudication. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Service connection for sleep apnea The Veteran contends that his sleep apnea began during his active duty service. The Board concludes that the Veteran has a current disability that began during active service.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran was diagnosed with obstructive sleep apnea (OSA) in August 2002. Thus, the question becomes whether the current disability is related to service. Service treatment records (STRs) noted that the Veteran had fluid in his chest in November 1974, for which he was hospitalized. In a February 2013 statement, the Veteran reported being irritable and tired during, and after, his active duty service. Soldiers would yell at him to wake up reportedly when he had apneas at night. Also, they told him that he snored loudly. Since his military service, he had been diagnosed with OSA and has been prescribed a CPAP. In a June 2014 statement, the Veteran’s wife noted that the Veteran snored loudly during his active service. His snoring progressed during service and he began to have apneas. She asked the Veteran to ask a military doctor about his snoring and apneas, but the doctor dismissed it. The Veteran did not seek treatment until the 2000’s when they saw a commercial about sleep apnea. In July 2014, the Veteran’s son, who is a physician, noted that the Veteran had exhibited symptoms of sleep apnea, such as lethargy, excessive daytime sleepiness, and nightly apneas, for as long as he could remember. The Veteran had complained of waking with an unrefreshed feeling after sleep since active service. The Veteran noted problems with memory and concentration, feeling tired, and headaches. The Veteran’s August 2016 substantive appeal noted that he worked at a military hospital during active service and asked a doctor about his snoring and apneas. The doctor stated that most men snore. The Veteran stated that he has been snoring and plagued with daytime tiredness since active service. During his October 2019 Board hearing, the Veteran testified that fellow soldiers notified him that he snored when he slept. During basic training, he noticed that he was not getting quality sleep and that he had daytime tiredness. Once he arrived at his duty station, his wife told him that he was snoring loudly and that he had apneas. He reported that his symptoms had remained the same since his active service. In November 2019, a private physician found that the Veteran’s snoring began immediately after an upper respiratory infection while on active duty. Per the Veteran’s wife, his snoring has worsened since active service. The physician opined that it was at least as likely as not that the Veteran’s in-service respiratory infection caused a lower respiratory tract disease and resulted in his long-standing sleep apnea. The physician interviewed the Veteran, reviewed his STRs, and post-service medical records. The Veteran has competently and credibly stated that he had daytime tiredness since active service. Also, the private physician noted in her November 2019 opinion that the Veteran’s sleep apnea disability began in service. The Board therefore attaches significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included an accurate assessment of the background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Therefore, based on a careful review of the entire record, the Board finds that the probative evidence of record shows that the Veteran’s OSA is related to his active duty service. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for OSA is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Service connection for bilateral foot DJD is remanded. The Veteran contends that he injured his bilateral feet during active service and that he has had bilateral foot pain and tenderness since. Multiple STRs show that the Veteran was treated for bilateral foot pain during active service. During a VA examination conducted in February 2011, the Veteran stated that his bilateral foot began during active service and had worsened since. He was diagnosed with bilateral foot DJD. The VA examiner opined that the Veteran’s bilateral foot pain was less likely than not related to his in-service injuries as there was no evidence of chronicity, but the examiner did not specifically address the Veteran’s lay assertions that he had worsening pain since his active duty service. In November 2019, a private examiner found that the Veteran’s foot pain began during his active service: however, a specific etiology opinion was not rendered. During his October 2019 Board hearing, the Veteran stated that his bilateral foot pain began during active service and had worsened since. He has worn orthotics since active duty to treat his bilateral foot pain and tenderness. Lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board finds that the February 2011 opinion is inadequate in this regard. Further, it is unclear as to whether the November 2019 examiner is linking a current bilateral foot disorder to the Veteran’s military service. Therefore, an addendum opinion is required. The matters are REMANDED for the following action: Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral foot DJD. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s report of worsening foot pain from standing for long periods of time during active service. Specifically, the examiner must address the Veteran’s lay statements that he has had constant bilateral foot pain since his in-service injuries. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.