Citation Nr: 21024941 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-54 464 DATE: April 27, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (sleep apnea) is granted. REMANDED Entitlement to service connection for residuals of a low back injury, to include lumbar strain is remanded. Entitlement to service connection for residuals of a right wrist injury is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, it is at least as likely as not that his sleep apnea onset in service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea (sleep apnea) have been met. 38 U.S.C. §§ 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the US Army from February 1993 to February 1996 and from November 2002 to November 2005. Having served under combat conditions in Iraq from August 2004 to July 2005, the Veteran is a combat veteran, for purposes of 38 U.S.C. § 1154(b). The undersigned Veterans Law Judge presided over a Board hearing in March 2021. A transcript of this hearing is of record. Entitlement to service connection for obstructive sleep apnea (sleep apnea) The Veteran asserts that he developed sleep apnea during service. In his March 2015 Notice of Disagreement and at his August 2016 C&P examination, the Veteran reports that his symptoms began in service, and continue to the present day. For reasons discussed herein, service connection is warranted. First, the Veteran has a current diagnosis of obstructive sleep apnea. 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). An August 2014 sleep medicine consultation report resulted in a diagnosis of obstructive sleep apnea. The sleep study noted excessive daytime fatigue, snoring, cessation of breathing during sleep, and waking up gasping for air. Accordingly, a current disability of sleep apnea is conceded. Moreover, the Veteran has presented competent and credible evidence that his sleep apnea likely onset in service. In March 2021 Hearing testimony, the Veteran recounts that in addition to always waking up tired, he had snored very loudly, driving his roommate to seek other accommodations. The Veteran recalls that after returning home, his mother also noted his loud snoring and ultimately persuaded him to seek treatment for it. Affording the Veteran the benefit of the doubt, this testimony corroborates the Veteran’s apnea having onset in service, and continued since. The Veteran is competent to testify about his roommate’s and his mother’s reports about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes the absence of symptoms recorded in service, and the passage of approximately eight years between the Veteran’s separation in 2005, and his application for service connection for obstructive sleep apnea submitted in June 2013, despite having obtained service connection for other disorders. The Veteran explains that he initially did not seek help for this problem because did not have the motivation to do so – an understandable explanation given his service-connected psychiatric symptoms. It is reasonable to assume that, given with the other disabilities from which the Veteran suffered, he tolerated his sleep apnea symptoms until he was convinced to undergo a sleep study. Accordingly, continuity of symptomatology is established by both the competent medical evidence of record and the Veteran’s competent testimony. Service connection can also be awarded when the medical evidence of record supports a showing of a nexus between service and current symptoms. Here, the Veteran recounted to his August 2016 examiner that while on active duty, he consistently woke up very tired. Further, at his March 2021 hearing, the Veteran testified that two different individuals noticed distinct symptoms of sleep apnea, both in service and after. The credible recounting of distinctive symptoms of sleep apnea, place the evidence showing a medical nexus to service in equipoise. The Board notes a C&P report dated August 2016 which includes an opinion stating that the Veteran’s sleep apnea is less likely related to service. The examiner opines that the Veteran’s symptoms are more likely tied to other risk factors, to include his post-service weight gain, age, gender, and craniofacial structure. This opinion is inadequate because the reasoning is not fully explained, as required by Barr v. Nicholson, 21 Vet. App. 303 (2007). Specifically, the examiner’s opinion was rendered without the benefit of the Veteran’s competent and credible Hearing testimony, recalling distinct symptoms of sleep apnea, to include snoring and waking himself up – more than merely waking up tired. The opinion was rendered without the benefit of the testimony discussed above, indicating that the Veteran had displayed the distinct symptoms of sleep apnea since his return from service. While not equipped with the medical knowledge and training of a licensed physician, the Veteran is competent to report unique, observable symptomatology of a disorder. See Barr at 307-308. In this case, the Board finds that the lay testimony of symptoms places the Veteran’s appeal at least in equipoise. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and grants service connection for obstructive sleep apnea. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. 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. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a low back injury, to include lumbar strain is remanded. 2. Entitlement to service connection for residuals of a right wrist injury is remanded. The Veteran claims service connection for a back injury and a right wrist injury, both of which he asserts originated with an injury in South Korea. Specifically, in March 2021 Hearing Testimony, the Veteran recounts that while on patrol duty in South Korea in 2004, he fell through a concealed hole. The impact of the fall, along with his 50 pound rucksack, injured the Veteran’s back and, due to the way he landed, his right hand. The Veteran asserts that he has had low back and right wrist pain since that incident, but that he minimized his sick call visits and took Motrin to push through the pain. Notably, the Veteran reports that he “toughed it out” due to his rank of Sergeant in an Air Assault unit, and only sought treatment when he went to VA to treat his pes planus and shin splints. Given the strenuous nature of his service in Air Assault in a combat zone, the Board recognizes the Veteran’s statements of in-service onset of back and wrist pain. Furthermore, the Veteran mentioned to his March 2014 C&P examiner that he experienced back pain in service radiating to the right scapula, with forward bending. The examiner opined that it was less than 50 percent likely that the in-service event at treatment was the nexus for the Veteran’s current back and wrist disabilities. Somewhat cryptically, he reasoned that the “back and radiation in service bears no resemblance to current.” This rationale is inadequate, as it is vague and does not explain the reasons and bases behind its opinion sufficiently for a fair adjudication. Further, it does not adequately address the Veteran’s statements about the circumstances of his in-service injury. Remand is warranted to produce an adequate VA examination to determine whether there is a nexus between the Veteran’s back and wrist disabilities and his in-service injury. The matters are REMANDED for the following action: 1. Add all outstanding VA treatment records not currently associated with the Veteran’s claims file. If the Veteran has obtained treatment outside of VA, he should be afforded an opportunity to add any applicable records. 2. Schedule the Veteran for a VA examination by an appropriate clinician for his low back strain. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. For each low back disability diagnosed, the examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, to include a fall into a concealed hole, as described by the Veteran? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. Special care should be taken to elicit as much detail from the Veteran as needed to accurately answer the above question. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for a VA examination by an appropriate clinician for his right wrist disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. For each right wrist disability diagnosed, the examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, to include a fall into a concealed hole, as described by the Veteran? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. Special care should be taken to elicit as much detail from the Veteran as needed to accurately answer the above question. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia