Citation Nr: 21024741 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-19 240A DATE: April 26, 2021 ORDER Service connection for obstructive sleep apnea is granted. Service connection for bilateral hammer toes is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his obstructive sleep apnea had onset in service. 2. . Resolving reasonable doubt in favor of the Veteran, his bilateral hammer toes were caused by service-connected bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for 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. 2. The criteria for entitlement to service connection for bilateral hammertoes have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1979 to November 1985, and from February 1986 to October 1999. A Board hearing was held before the undersigned Veterans Law Judge in March 2019, and a transcript of the hearing is of record. The Board remanded the issues currently on appeal in August 2019, and again in October 2020. The agency of original jurisdiction (AOJ) has substantially complied with the remand instructions, and the Board finds the evidence of record is sufficient to proceed with a decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected injury. 38 C.F.R. § 3.310(a). 1. Obstructive Sleep Apnea The Veteran contends that his obstructive sleep apnea, diagnosed in September 2008, had onset in service. See May 2016 Informal Conference; see also March 2019 Board hearing transcript. In a March 2000 VA mental health note, approximately four months after the Veteran’s separation from service, he reported low energy, difficulty falling asleep, and waking three to four times throughout the night. In an August 2008 VA primary care note, the Veteran reported difficulty sleeping and awakening several times throughout the night. The Veteran reported he had been told at times it appeared he was not breathing during his sleep. The Veteran reported he did not feel rested in the morning. The Veteran was referred for a sleep study, which revealed a severe degree of sleep apnea. See September 2008 VA administrative note. In October 2008 correspondence, the Veteran reported he only slept four to five hours each night for the past 15 years, with frequent awakenings throughout the night. The Veteran reported he experienced extreme daytime fatigue beginning in service, but that examinations in service did not demonstrate any physical indications for his feelings of fatigue throughout the day. See October 2008 VA Form 21-4138; see also April 2016 correspondence from the Veteran. In a January 2015 VA PTSD examination, the Veteran reported he had poor sleep and was easily awakened. The examiner reported such symptoms were more likely attributable to his diagnosis of obstructive sleep apnea than PTSD. See also October 2010 VA PTSD examination (Veteran reported difficulty falling or staying asleep in service). A VA medical opinion was obtained in July 2015 pertaining to the Veteran’s claim for entitlement to service connection for obstructive sleep apnea. The examiner opined the Veteran’s current diagnosis of obstructive sleep apnea was less than likely caused or aggravated by service, to include exposure to environmental hazards in Southwest Asia. The examiner opined the etiology of the Veteran’s obstructive sleep apnea was more likely than not related to obstruction in the upper airways due to adipose tissue, and/or laxity due to lying in the supine position. The Veteran was afforded a VA sleep apnea examination in January 2020. The examiner opined the Veteran’s obstructive sleep apnea was less likely than not incurred in service. The examiner reported service treatment records were silent for sleep issues. The examiner indicated a nexus between the Veteran’s reported symptoms in service and his current diagnosis of obstructive sleep apnea was not supported by the objective medical evidence. Another VA medical opinion was obtained in October 2020. The examiner opined the Veteran’s obstructive sleep apnea was less likely than not incurred in service. The examiner reported there was no documentation of any sleep-related disorder while on active duty, and it was not until many years later that he was diagnosed with obstructive sleep apnea. The examiner reported there is no way to establish that the symptoms the Veteran reported he experienced while on active duty were due to sleep apnea as opposed to other sequelae of PTSD. In December 2020, the Veteran’s attorney submitted an independent medical examination conducted by Dr. J.W.E. In taking a history of the Veteran’s obstructive sleep apnea, the Veteran reported fellow sailors complained about his loud snoring. The Veteran reported he worked 12-hour shifts for almost 14 years, and that he never felt rested after waking from his sleep. The Veteran reported he drank a lot of coffee to keep himself attentive due to increased daytime sleepiness. The Veteran indicated his wife witnessed apnea episodes in his sleep. Dr. J.W.E. opined the Veteran’s reported symptoms in service were more likely than not due to obstructive sleep apnea. In considering the evidence of record, the Board resolves reasonable doubt in favor of the Veteran in finding that entitlement to service connection for obstructive sleep apnea is warranted. Although the Veteran’s available service treatment records are silent for reports of sleep problems, the Veteran has credibly reported that he believed his daytime fatigue was normal due to working long shifts for many years, and the examinations in service did not demonstrate any physical indications for his feelings of fatigue throughout the day. The Board adds that a separation medical examination is not associated with the evidence of record. Additionally, the Board notes that the lack of contemporaneous records does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran is competent to report his medical history, and, in this case, the Board finds the Veteran’s report of difficulty sleeping and frequent awakenings in service to be credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In light of the above, the Board places less probative weight on the VA medical opinions that concluded the Veteran’s obstructive sleep apnea did not have onset in service. Such opinions appear to rely primarily on a lack of documentation of any sleep-related disorder while on active duty. Although the VA medical opinions noted an August 2008 VA primary care provider indicated the Veteran reported a two-year history of difficulty sleeping, the Board notes that the Veteran reported in March 2000 (approximately four months following his separation from service) that he was experiencing low energy, difficulty falling asleep, and waking three to four times throughout the night. On VA examination in January 2015, the examiner reported that such symptoms were likely attributable to the Veteran’s diagnosis of obstructive sleep apnea. Here, the Board places greater weight on the Veteran’s competent and credible report that his current symptoms of obstructive sleep apnea, which formed the basis for his referral for a sleep study in 2008, had onset in service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence may be competent to establish etiology if the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Such is supported by the Veteran’s March 2000 report of low energy, difficulty falling asleep, and waking three to four times throughout the night; the January 2015 VA examiner’s opinion that such symptoms were attributable to obstructive sleep apnea; and the positive nexus opinion from Dr. J.W.E. The Board finds the evidence of record is in relative equipoise as to whether the Veteran’s obstructive sleep apnea had onset in service, and entitlement to service connection is granted. 2. Bilateral Hammertoes The Veteran contends that his current diagnosis of bilateral hammertoes is either due to wearing improperly fitted boots in service, or that his bilateral hammertoes are secondary to his service-connected bilateral pes planus. See March 2019 Board hearing transcript. The Veteran was afforded a VA examination in January 2020. The examiner opined the Veteran’s current diagnosis of bilateral hammertoes was less likely than not proximately due to or aggravated by his service-connected bilateral pes planus. The examiner reported that medical literature does not support a causative effect between pes planus and hammertoes. The examiner further explained that hammertoes arise from soft tissue injury, inflammatory arthritis, neuromuscular disorders, or trauma, although genetic predisposition may play a role. Another VA medical opinion was obtained in October 2020. The examiner opined the Veteran’s current diagnosis of bilateral hammertoes was less likely than not caused by or otherwise related to service. The examiner explained that the Veteran’s bilateral hammertoes were not diagnosed until many years after service, and that such would have manifested on active duty if improperly fitted boots in service were the cause of the Veteran’s hammertoes. The examiner also opined that it was less likely than not that the Veteran’s service-connected bilateral pes planus caused or aggravated his bilateral hammertoes. The examiner reported that pes planus does not have the capacity to alter the architecture of the interphalangeal joints involved in the digits resulting in hammertoes. However, the Board observes that the examiner referenced research concerning hammertoes, which stated that “When it comes to genetics, the foot type you’re born with predisposes you to developing this type of joint deformity [hammertoes] over a lifetime. Flat, flexible feet can lead to hammertoes as the foot tries to stabilize against a flattening arch.” In December 2020, the Veteran’s attorney submitted an independent medical examination conducted by Dr. J.W.E. The Veteran reported he had recently developed hammertoes. Dr. J.W.E. indicated the Veteran’s service-connected bilateral pes planus led to abnormal biomechanics, resulting in symptomatic, progressive deformity of the bilateral feet. In considering the evidence of record, the Board resolves reasonable doubt in favor of the Veteran in finding that entitlement to service connection for bilateral hammertoes, secondary to service-connected bilateral pes planus, is warranted. While the January 2020 VA examiner reported there is no causative effect between pes planus and hammertoes, the examiner noted genetic predisposition may play a role. Additionally, the October 2020 VA examiner reported pes planus does not have the capacity to alter the architecture of the interphalangeal joints involved in the digits resulting in hammertoes. However, in support of his opinion, the October 2020 examiner referenced research that appears to contradict his medical conclusion. The Board finds the medical information cited by the October 2020 VA examiner, supports Dr. J.W.E.’s positive medical opinion that the Veteran’s service-connected bilateral pes planus led to abnormal biomechanics, resulting in symptomatic, progressive deformity of the bilateral feet. As such, the Board finds the evidence of record is in relative equipoise as to whether the Veteran’s bilateral hammertoes are secondary to his service-connected bilateral pes planus, and entitlement to service connection is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.