Citation Nr: 21022381 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-39 965 DATE: April 15, 2021 ORDER Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a right arm condition as secondary to a service-connected right shoulder rotator cuff disability repair is remanded. FINDING OF FACT The Veteran’s sleep apnea began during service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1996 to May 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veteran’s Law Judge in December 2020. The transcript has been associated with the file. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active duty service, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303.  Service connection is established on a direct basis when there is competent, credible, evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease of injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea began during his active duty service and has continued through to the present. The Veteran was diagnosed with sleep apnea in September 2009 during a private sleep study. See medical treatment records (received 5/2/2016, pp. 4). As a result, the first element of service connection has been met. The Veteran’s service treatment records show his entrance examination from March 1996 does not reflect an issue with sleeping at that time. However, the Veteran reported having a sore throat in December 1996 and October 1998. Furthermore, the Veteran’s service treatment records from August 1998 to November 1998 show consistent reports of tonsilitis and headaches. In November 1998, the Veteran had his tonsils removed while on active duty service in Germany. After the tonsillectomy, in January 1999 the Veteran reported consistent insomnia issues to which the provider at the time prescribed Benadryl as needed for “sleeplessness.” Additionally, in May 2016 the Veteran submitted a statement depicting his sleep apnea in service. The Veteran recalled that for a “majority” of his time in service, his fellow servicemembers told him he snored “extremely loud.” The Veteran also recalled not being told this during basic training. The Veteran then asserted that the doctors in Germany who removed his tonsils believed the size of his tonsils contributed to his sleep apnea. However, despite the removal in November 1998, the Veteran still had trouble sleeping as noted above in the January 1999 in service medical report. The Veteran also submitted a May 2016 letter from a fellow service member who routinely participated in field training exercises with the Veteran. The fellow servicemember stated that he could “distinctly remember [the Veteran’s] extremely loud snoring, several time his snoring could make it difficult for many of us to fall asleep and often wake others.” Furthermore, the Veteran’s wife, a licensed practical nurse (LPN), also submitted a statement in support of the Veteran’s claim to service connection. The Veteran’s wife stated she had known the Veteran since 2001 and “noticed right away” that he was snoring loudly. She then recalled the Veteran explaining how other servicemembers complained about his loud snoring in service and how they would throw things at him to make it stop. She also stated that she has been an LPN since 1999 and recalled sleep apnea not being a regularly diagnosed condition at that time. However, she had been working with an “internal medicine doctor” that presented symptoms of sleep apnea to his patients that she believed the Veteran also had. This included a cessation of breathing multiple times during the night that would cause the Veteran to awake gasping for air. She asked him to seek medical care for this condition and in 2009 he underwent a sleep study in which he was diagnosed with sleep apnea and a CPAP machine was prescribed. She concluded by stating that after she herself had reviewed the Veteran’s service records, she asserts that his sleep apnea began in service due to his reports of, “insomnia, sore throat, weight gain, headaches, and waking several times during the night” while on active duty. Furthermore, in August 2017 the Veteran submitted private medical records from Dr. G. This provider reviewed the Veteran’s service treatment records, sleep study, and “civil medical records on sleep apnea.” Dr. G then provided a list of all of the Veteran’s sleep apnea symptoms reported while in service to include headaches, sore throat, being overweight, enlarged tonsils, tonsillectomy, and not being able to sleep. The provider also asserted that during the time the Veteran was reporting these issues, from December 1996 to January 1999, a sleep apnea diagnosis for young men was rare. However, the provider points out again that despite its rarity, the Veteran was diagnosed in 2009 with moderate to severe sleep apnea to which a CPAP machine was given. Additionally, the provider also asserts that again, despite the rarity the Veteran was diagnosed properly as evidence by his second sleep study. In 2016 the Veteran underwent his second sleep study as his symptoms appeared to be worsening. The provider noted that upon the 2016 reassessment, the Veteran was given the same diagnosis as the 2009 study. The Veteran’s sleep issues were returning due to a malfunctioning CPAP machine to which the provider prescribed a new one. The provider stated that the based on his review of the evidence and symptoms the Veteran experienced in service, is it at least as likely as not that the Veteran “had sleep apnea while he was in the military and even tried to get treatment for the symptoms of sleep apnea during that time.” The Veteran and his wife also testified to the same onset and observation of symptoms in the December 2020 hearing. The Veteran again stated he was told numerous times while in service that he snored loudly and would often have things thrown at him in an attempt to stop the snoring. The Veteran also recounted other servicemembers being told they snored loudly during basic training but that the Veteran was not informed of his snoring by his roommates until he was stationed at Aberdeen Proving Ground in Maryland. The Veteran described having a sore throat, lack of sleep, headaches, and being fatigued all day. He also stated that he had his tonsils removed in service, but the snoring became louder after the removal. The Veteran’s wife also testified that she had noticed his snoring immediately upon meeting him in 2001. She suspected he had sleep apnea for years prior to his 2009 sleep study, despite its rare diagnosis at that time, due to her experience working with the internal medicine doctor. The Veteran’s wife and the Veteran’s fellow servicemember are competent to report on the observable symptoms of the Veteran’s sleep apnea. The Veteran is competent to report the observed symptoms as relayed to him by fellow servicemembers. See 38 C.F.R. § 3.159(a)(2). Additionally, the Veteran’s wife is an LPN and as such is competent to provide medical opinions within the scope of her medical expertise. See 38 C.F.R. § 3.159(a)(1). Furthermore, the Veteran and his wife are credible sources of information as they have recounted the same description of the onset of sleeping issues and accompanying symptoms since the claim was filed in February 2016 and even prior to filing the claim. The Veteran’s records do not show issues with sleeping prior to his active duty service in August 1996. As stated above, the first instance of sleep trouble was while the Veteran was stationed in Aberdeen during active duty service. His medical records after service show a sleep apnea diagnosis in the course of seeking treatment in 2009, nearly seven years prior to the claim for service connection. White v. Illinois, 502 U.S. 346, 356 (1992) (Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). As a result, the Board also deems the Veteran’s and his wife’s lay statements and testimony as credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Finally, the Veteran and his wife have reported consistently accurate evidence throughout the entirety of this claim. Their claims were supported with medical evidence and the Veteran’s own statements along with his wife’s statements. As a result, the Veteran’s lay assertions, his wife’s medical assertions, and their testimony are deemed highly probative evidence in establishing that the Veteran’s sleep apnea began in service. Furthermore, the Veteran submitted medical evidence from Dr. G to establish that the symptoms recorded in his service treatment records are related to his current sleep apnea that manifested in service and continued to the present. Dr. G provided a detailed rationale including evidence from the Veteran’s service treatment records and private medical records. As a result, the preponderance of the evidence is in favor of the Veteran’s claim for service connection for sleep apnea. The claim is granted. REASONS FOR REMAND 1. Service connection for a right arm condition as secondary to a service-connected right shoulder rotator cuff repair disability is remanded. The Veteran asserted that his current right arm condition is a result of his service-connected right shoulder rotator cuff repair. More specifically, the Veteran asserts that the numb, cold, and tingling feeling in his right arm is a result of the injury and repair of the service-connected right shoulder condition. He has not been provided a VA examination to determine if his current right arm condition is related to his right shoulder disability. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease OR a service-connected disability, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. 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 evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83.   In February 2017, the Veteran was diagnosed with bicep tendonitis of the right arm which is evidence of a current disability. As for the second requirement, the Veteran is already service connected for a right should injury sustained in service. In reference to the third McLendon factor, the Veteran submitted private medical records from July 2017 from Dr. W. The provider asserted that the Veteran’s right arm condition was at least as likely as not related to his right shoulder condition. However, the provider asserted that the Veteran reported tingling and numbness of his right arm while in service during “several visits to the military doctors” which were not supported by the Veteran’s service treatment records. Additionally, the provider asserted that the orthopedic specialist that was treating the Veteran’s right shoulder remarked that the Veteran “possibly has a neurological issue causing the numbness and tingling” that the Veteran has been experiencing in his arm. However, upon review of the June 2016 orthopedic note in question, it appears that the provider was referencing the Veteran’s index finger. As Dr. W’s opinion was founded on an inaccurate summation of the facts as presented by the record, it is not probative nexus evidence. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Nevertheless, the assertion from Dr. W that there is a connection between the Veteran’s right arm condition and right shoulder condition is probative enough to meet the low threshold of an “indication” set out by McLendon. On remand, the Veteran should be afforded a VA examination to determine the nature and etiology of his right arm condition to include bicep tendonitis. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his right arm condition to include bicep tendonitis. The examiner must review the entire claims file. The examiner is asked to provide a response to the following: (a.) Is the Veteran’s right arm condition at least as likely as not proximately due to his service-connected right shoulder rotator cuff repair? (b.) Is the Veteran’s right arm condition at least as likely as not aggravated (i.e., worsened beyond its natural progression) by his service-connected right shoulder rotator cuff repair? A reasoned medical explanation connecting a clear conclusion to its supporting data must be provided for each opinion. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, S. Conti 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.