Citation Nr: 21013773 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-28 961 DATE: March 10, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is at least in equipoise with regard to showing that the Veteran’s current sleep apnea disability is etiologically linked to contributing factors from in-service metal shrapnel and explosive concussion injuries to the right head and neck areas with compression of cervical discs. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from May 2002 to December 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2019, when it was remanded for additional development of the evidentiary record. The Veteran testified at a Board hearing before the undersigned in December 2018. A transcript of the hearing is of record. 1. Entitlement to service connection for sleep apnea is granted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). For the purposes of evaluating lay evidence, to include a veteran’s statements about the circumstances of his service, competent evidence is limited to that which the witness has actually observed, and is within the realm of the personal knowledge of the witness. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness, a lay person is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board notes that it has reviewed all of the evidence of record in the Veteran’s claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. As discussed in the Board’s prior April 2019 remand of this matter, the Veteran has a current diagnosis of sleep apnea. He asserts his symptoms began in service and notes exposure to burn pits while deployed in Afghanistan and Iraq. The Board’s April 2019 remand determined that a VA medical opinion was needed to support informed appellate review of this claim. The Board directed that “the clinician is requested to consider and discuss as necessary the fact that the Veteran was exposed to smoke from burn pits in both Afghanistan and Iraq, his December 2018 Hearing testimony, and the statements provided by his spouse and mother in 2018, regarding onset of his symptoms in service.” During the processing of the Board’s April 2019 remand, the Veteran submitted a significant private medical opinion in support of his claim in September 2019. The medical opinion submitted in September 2019 (authored in August 2019) is signed by a medical doctor who has “been the primary care physician for [the Veteran] since 2012.” The private medical opinion asserts that the Veteran “was diagnosed with sleep apnea in 2012…. His military injury is a contributing factor for his development of sleep apnea and need for continuous treatment.” The private medical opinion identifies the cited pertinent in-service injury: “[the Veteran] sustained traumatic injury from a rocket propelled grenade explosion during his deployment with the US Army in Iraq in 2004. Injuries include metal shrapnel and explosive concussion effect to the right head and neck area, and compression of several cervical discs.” The private medical opinion notes that the Veteran “has persistent numbness of the right lower face and neck, and elbow area.” After the submission of the private medical opinion in September 2019, the Veteran was afforded a VA medical opinion addressing this case in November 2019. The November 2019 VA medical opinion acknowledges and recites the conclusion of the private medical opinion discussed above, but does not address the conclusion with any analysis. The November 2019 VA medical opinion concludes that “the veteran’s claimed sleep apnea is less likely than not related to the[]Veteran’s service,” and provides a rationale that does not contemplate or address the injuries cited by the supportive private medical opinion. Rather, the November 2019 VA medical opinion provides the following rationale: He was diagnosed with Sleep apnea in 2013 many years after his separation. [T]he veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and given consideration including lay statement by his wife. However[,] records failed to show any consultation or treatment relative to sleeping problem while in service to indicate existence of the condition and to state that the sleep apnea was incurred during service without enough medical evidences will resort to mere speculation. The November 2019 VA medical opinion goes on to cite information regarding the medical uncertainty surrounding questions of the “debatable” health impacts of burn pit exposures for Veterans who have been exposed in Iraq and Afghanistan. The Board finds that the November 2019 VA medical opinion is not fully adequate to support informed appellate review of this claim. First, the Board is not convinced that the November 2019 VA medical opinion adequately addresses the pertinent lay statements from the Veteran and others regarding in-service incurrence. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). Second, the Board notes that the November 2019 VA medical opinion appears to rely significantly upon the absence of contemporaneous medical documentation of symptoms during service in a manner that may be considered inadequate to support a conclusion that the symptoms were absent. Third, the Board is unable to find that the November 2019 VA medical opinion adequately addresses the theory of entitlement presented by the significantly supportive evidence of the private medical opinion presented in September 2019. The Board has accordingly considered whether a remand for a more adequate VA medical opinion is warranted at this time or, alternatively, whether the additions to the evidentiary record since the Board’s prior remand provide sufficient basis to resolve the appeal with a final decision at this time. The Board finds that the private medical opinion submitted in September 2019 indicates that the Veteran’s sleep apnea is etiologically linked to the same in-service injuries that have already been established to have caused his recognized service-connected disabilities of the face and the neck, including neurological deficits. The Board finds that this private medical opinion is competent probative evidence, authored by a medical doctor and presenting a conclusion with a plausible and reasonably persuasive rationale. The Board takes judicial notice of the apparent fact that the lower face and neck areas discussed by the private medical opinion are in locations that are plainly functionally pertinent to airway and respiratory anatomy; the private expert’s assertion that the injuries functionally impacting these areas contributed to causing sleep apnea appears reasonably plausible. The Board finds that there is no controversy in this case as to the fact that the Veteran has sleep apnea, including as confirmed by the statement from his primary care physician submitted in September 2019. Thus, the first Shedden requirement for entitlement to service connection is satisfied. The Board finds that there is no controversy in this case as to the fact that the Veteran suffered the cited injuries to the face and neck during service; these injuries have already served as bases for awards of service-connected compensation in a May 2007 rating decision (acknowledging in-service shrapnel wounds to the neck and granting service connection for disabilities of the cervical spine / neck and face). Thus, the second Shedden requirement for entitlement to service connection is satisfied. Resolving reasonable doubt in the Veteran’s favor, the Board is furthermore able to find that the third Shedden requirement is sufficiently satisfied. The September 2019 private medical opinion is competent evidence reasonably indicating a causal connection between the in-service injuries and the current sleep apnea. The Board finds no significantly contrary evidence of record, and the Board finds that the September 2019 private medical opinion can be accepted as persuasive. As such, the Board finds that entitlement to service connection for sleep apnea is warranted. Upon review of the record, the Board finds that the above-discussed information supports a finding that the Veteran’s current sleep apnea is at least as likely as not incurred in / etiologically related to his injuries suffered during military service. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.