Citation Nr: 21021558 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-19 528A DATE: April 13, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for essential tremors is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his obstructive sleep apnea is at least as likely as not related to active service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Marine Corps from August 1988 to August 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2013 and May 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The record shows that this matter was recently remanded pursuant to an October 2018 Board decision. Therein, the agency of original jurisdiction (AOJ) was directed to conduct additional development, to include obtaining new VA opinions. Regrettably, as to the issue of entitlement to service connection for essential tremors, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2018). Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2018). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2018). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, 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 (2014); 38 C.F.R. § 3.102 (2018); 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 of the matter, the benefit of the doubt will be given to the Veteran. Id. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that he is entitled to service connection for obstructive sleep apnea. He further contends that his condition is causally related to Gulf War exposure. The Veteran also suggested a secondary connection to his service-connected major depressive disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Review of the record confirms that the Veteran has a current diagnosis of obstructive sleep apnea. Pursuant to an October 2019 Board Decision, and implemented by an April 2019 Rating decision, the Veteran was granted service connection for a fatigue disability as secondary to his service-connected major depressive disorder. According to military personnel records, the Veteran’s official military occupation was listed as field radio operator. His periods service confirm participation in Operation Desert Shield and Operation Desert Storm, in Saudi Arabia between August 1990 and April 1991. As a preliminary matter, the Board observes that portions of the Veteran’s service treatment records are unreadable. Among the legible records, a report of medical examination found no evidence of disqualifying abnormalities at enlistment in February 1988. In a corresponding report of medical history, the Veteran reported that he was in good health. No complaints of sleep trouble, neuritis, a bone/joint, or other deformity were listed. At separation, no physical abnormalities were identified during a physical examination in June 1992. However, in the comments section, the Veteran reported bouts with seasonal allergies, allergic rhinitis, and insomnia. Use of chewing tobacco was also noted. In a corresponding report of medical history, no complaints of neuritis, a bone/joint, or other deformity. However, the Veteran endorsed problems sleeping. Post-service treatment records confirm a lengthy history of reports of impaired sleep, chronic fatigue, impaired focus due to day-time drowsiness. In this case, the Veteran has afforded multiple VA examinations which yielded numerous conflicting opinions regarding etiology. On examination in November 1993, the Veteran reported an onset of fatigue and bouts with daytime sleepiness following his return from active service in the Persian Gulf. Similar complaints of symptoms and their chronicity were endorsed during a VA Gulf War examination in October 2013. The same month, the Veteran underwent a VA examination for obstructive sleep apnea. A current diagnosis of obstructive sleep apnea was confirmed via a sleep study conducted at a private neurology and sleep lab in June 2011. During the consultation, the Veteran reported a history of excessive snoring and problems achieving restful sleep dating back to his return from service in the Persian Gulf. To treat his symptoms, he was prescribed continuous positive airway pressure (CPAP) therapy. Following the clinical evaluation, the examiner concluded that the Veteran’s disability pattern did not result from an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or a diagnosable chronic multi-symptom illness with a partially explained etiology. Obstructive sleep apnea is a condition with a clear and specific etiology. Therefore, it was deemed less likely as not that the Veteran’s obstructive sleep apnea is causally related to a specific exposure event which occurred during active service in Southwest Asia. In support of the stated conclusion, the examiner merely asserted that the medical evidence lacked documented complaints of symptoms either in-service or post-service until 2011. In March 2016, the Veteran underwent a VA examination for chronic fatigue syndrome (CFS). During the clinical interview, he endorsed bouts with fatigue dating back to his return from Operation Desert Storm in 1992. The Veteran suggested that his fatigue was likely related to an undiagnosed illness resulting from Gulf war exposures. Following the clinical evaluation, the examiner opined that it was less likely than not that the Veteran’s claimed fatigue was incurred in or caused by the claimed in-service event, injury or illness. The examiner concluded that the diagnostic criteria for CFS had not been shown. Alternatively, it was suggested that the Veteran’s fatigue was more likely related to his sleep apnea and depression disabilities. Therefore, he disability pattern represented a clear and specific etiology and related diagnosis. Pursuant to an October 2018 Board remand decision, the Veteran’s claim was remanded to obtain an additional VA medical opinion. Thereafter, in October 2019, a VA examiner identified current diagnoses of obstructive sleep apnea and chronic sinusitis. During the clinical interview, the Veteran reported bouts with daytime fatigue that often impaired his ability to drive. To treat his symptoms, he was prescribed oral medications and CPAP therapy. Reportedly, an increase in physical exercise was also recommended. Overnight shifting of the CPAP mask causes ongoing problems with maintaining sleep. An initial diagnosis was first rendered via a sleep study, dated June 2011. The findings were deemed consistent with severe obstructive sleep apnea with oxygen desaturations and fragmented sleep. A functional impact was described as daytime fatigue that interferes with his ability to work due to diminished focus. The Veteran acknowledged falling asleep within the scope of his work as a case manager. A loss of up to 1 week of work was reported over the last 12 months. The Veteran was advised to schedule a follow-up evaluation with his primary care physician to address the improper fit from his prescribed CPAP mask. Following the clinical evaluation, the examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran’s obstructive sleep apnea was incurred in or caused by any in-service injury, event, or illness. In support of the stated conclusion, the examiner suggested that the record was silent for complaints of fatigue or sleep apnea during active service. Post-service treatment records indicate an onset of symptoms in 2008. After the initial reporting, the Veteran failed to seek additional medical treatment until several years later. Similarly, the examiner noted that there was insufficient medical evidence to determine a baseline level of severity of the Veteran’s reported symptoms. Notably, his reports of chronic fatigue and sleep disturbance were deemed consistent with subjective reporting listed in 2008. There is no research to indicate fatigue causes or aggravates sleep apnea beyond its natural progression. In an additional addendum opinion, dated July 2020, the VA examiner concluded that posttraumatic stress disorder (PTSD) and related comorbidities, such as depression, do not cause obstructive sleep apnea. Obstructive sleep apnea typically results from the relaxation of the upper airways associated with apneic episodes. Review of the medical literature confirms an association between obstructive sleep apnea and comorbid PTSD. They do not imply nor confirm a cause and effect. This supports the generally accepted medical knowledge and practice. It’s also consistent with current literature. Additionally, there is no direct impact or association due to aggravation of obstructive sleep apnea. While some psychiatric medications may have a depressant effect, it is a temporary side effect. Progression of obstructive sleep apnea can be documented through the use of standardized questionnaires, CPAP settings, and serial sleep studies. There is no objective evidence of progression beyond the natural course of the Veteran’s obstructive sleep apnea. Nonetheless, neither cause or aggravation are related to the PTSD and related comorbidities and treatments. In a December 2019 lay statement, the Veteran disputed the VA examiner’s opinion and noted its conflicting conclusions. Specifically, it cited medical literature that acknowledged the possibility of a causal linkage between OSA and depression. In a September 2016 population based-longitudinal study, a possible association was found between obstructive sleep apnea and depression. The findings acknowledged some inconsistencies among the study data. Despite the foregoing, a strong bio-directional relationship was suggested between obstructive sleep apnea and depression, with each disease influencing the development of the other. On review of the record, resolving all doubt in the Veteran’s favor, the Board finds that the evidence supports a causal linkage between the current diagnosis of obstructive sleep apnea and active service, to include as secondarily related to his service-connected major depressive disorder. In support of the stated conclusion, the Board notes the medical evidence documents complaints of sleep disturbance and fatigue dating back to active service. At separation, the Veteran endorsed problems with insomnia and frequent bouts with sinus symptoms. Two years, later the Veteran was afforded a VA examination during which he continued to report trouble sleeping and chronic fatigue. Thereafter, the Veteran continued to complain of problems initiating and maintaining sleep, loud snoring, labored breathing, and fatigue. During subsequent VA examinations, inconsistent findings were indicated regarding a possible causal linkage between the Veteran’s sleep disorder, Persian Gulf exposures, and his service-connected psychiatric condition, to include aggravation. While the Board has thoroughly reviewed the various etiological opinions of record and notes their inconsistent findings, to include as recently as July 2020, it nevertheless concludes that the evidence supports a finding of service connection. Although the most recent VA opinion suggested that medical literature failed to confirm a cause and effect between the Veteran’s psychiatric symptoms and his sleep disorder, the Board cannot ignore or disregard other favorable medical evidence, to include the cited population-based case study, which found evidence of comorbidity between the two conditions. Further, the record shows frequent reports of fatigue and sleep disturbances dating back to active service. Accordingly, where there is an approximate balance between positive and negative evidence, or equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. 38 U.S.C. § 5107 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for Veteran’s obstructive sleep apnea, to include as secondary to his service-connected major depressive disorder is granted. See 38 U.S.C. § § 5107 (b); 38 C.F.R. § §§ 3.102, 3.303, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for essential tremors is remanded. Although the further delay entailed by remand is regrettable, current adjudication of the Veteran’s claims would be premature. Undertaking additional development prior to a Board decision is the only way to ensure compliance with the duty to assist, as required. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2018). The Veteran contends that he is entitled to service connection for essential tremors. Pursuant to an October 2018 Board remand decision, the Veteran’s claim was remanded to obtain an additional VA opinion. The remand indicated that the previous VA examiner failed to determine whether the Veteran’s essential tremor disorder constitutes a clinical diagnosis, or symptomology suggestive of an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.§1117. In accordance therewith, the Veteran was afforded a new VA examination in October 2019. A current diagnosis of an essential tremor and fibromyalgia were indicated. During the clinical interview, the Veteran reported an onset of visible “shaking or twitching” in 1990 while serving in during Operation Desert Storm. His symptoms involved the entire body and progressed over time. Hand tremors impair his fine motor skills and impact his ability to complete tasks such as writing, typing, using eating utensils, writing, hand tools, or playing guitar. According to the Veteran, shaking in the bilateral legs interferes with his ability to drive, maintain balance, raise and lower himself from a seated position. Facial tremors, to include in the chin and tongue, impact his ability to eat, drink, and effectuate speech. In 2013, a neurologist rendered a diagnosis of an essential tremor based upon diagnostic testing. No additional abnormalities were shown on EMG testing nor an MRI of the brain. To treat his symptoms, the Veteran was prescribed oral medications include Propranolol, Primidone, Gabapentin. Other symptoms include muscle weakness and mild difficulties swallowing. No respiratory or bowel conditions were identified. Following the clinical evaluation, the examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran’s essential tremors were incurred in or caused by the claimed in-service injury, event, or illness. In support of the stated conclusion, the examiner noted that the Veteran has a current diagnosis of essential tremor. The stated diagnosis is based upon identification of characteristic symptoms, a detailed patient history, and a thorough evaluation. There is no specific test to diagnose an essential tremor. Extensive diagnostic testing and a neurological examination have been performed and the diagnosis of essential tremor has not changed or altered. Additionally, the claim’s file is silent complaints of tremors or shaking prior to 2014. In July 2019, a neurology outpatient note indicated that the Veteran has been followed for complaints of headaches and essential tremors. Regarding the essential tremors, his symptoms impact both arms, with worsening symptoms on the left side. The tremors were described as both postural and intention predominant. A tremor also impacts the jaw and tongue. Prescribed medications include Propanolol and Primidone. Regarding the Veteran’s headaches, his symptoms included photophobia and posterior neck sensitivity. The noted symptoms were deemed suggestive of migraines. Prescribed medications included Propanolol, Gabapentin, and Sumatriptan. In a December 2019 lay statement, the Veteran disputed the October 2019 VA examiner’s suggestion that only a single complaint of tremors was reported in 2014. In fact, his complaints of symptoms date back to separation from active service and were well documented in post-service treatment records. In November 1993, orthopedic and rheumatologic evaluations referenced complaints of tremors in the right knee and thigh. During a Gulf War examination in October 2013, the examiner acknowledged the Veteran’s complaints of tremors but suggested that his symptoms were without an established etiology. However, a neurologic examination provided a contradictory conclusion and suggested that the Veteran’s symptoms had a clear and specific etiology that was unrelated to exposures in South West Asia. Moreover, the Veteran contends that an April 2016 rating decision denied service connection due to a lack of a formal diagnosis related to his tremors. He asserts that the decision was flawed VA treatment records from 1993 to 1997 confirm related treatment. Regrettably, efforts to obtain the related records were unsuccessful as they were lost. The Veteran also disputes the VA examiner’s October 2019 opinion as the examiner listened to his self-reported timeline of symptoms but ignored his complaints of sleep impairment and occasional gastrointestinal leakage. Moreover, the Veteran reports a history of worsening tremors dating back to separation. His symptoms impact his entire body, to include his face, speaking voice, and tongue. The Veteran states that the VA examiner failed to opine whether his essential tremors constitute a clinical diagnosis or represent a medically undiagnosed illness. It was noted that the Board’s previous remand specifically requested an opinion speaking to the above referenced. The Veteran stated that VA treatment records fail to confirm an etiology for his tremors. Considering the record as a whole, the Veteran contends that the benefit of the doubt should be resolved in his favor, to include that his neurological symptoms are presumptively related to active service. Considering the above, the Board finds that the October 2019 VA examination opinion is inadequate. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of the claimed essential tremor disability. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. Thereafter, the examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability), that the Veteran’s current essential tremor disability was incurred in, caused by or is otherwise related to any in-service disease, event, or injury. Specifically, the examiner is requested to comment on whether the Veteran’s complaints of symptoms are attributed to a known clinical diagnosis, or whether it is at least as likely as not that his symptoms are manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War. In addition, the examiner should also comment on the current severity of symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.