Citation Nr: 21025330 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-15 246 DATE: April 27, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for bilateral plantar fasciitis with right heel spur is remanded. FINDING OF FACT The competent and credible evidence of record is in equipoise as to whether obstructive sleep apnea had its onset in service and has continued since service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from May 1970 to January 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by Regional Office (RO) of the Department of Veterans Affairs (VA). A January 2019 Board decision denied service connection for bilateral plantar fasciitis with right heel spur and obstructive sleep apnea. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims. In a May 2020 Order, the Court granted a Joint Motion for Partial Remand, vacating the Board’s decision as to the claims and remanded the matters to the Board for actions consistent with the Joint Motion. Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309 A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for obstructive sleep apnea The Veteran asserts that obstructive sleep apnea began while in service and continued after separation from service. The service medical records do not show complaints of or treatment for obstructive sleep apnea. A December 1971 separation examination shows that the Veteran indicated frequent trouble sleeping. The examiner noted that the Veteran had had sleeping difficulty for many years. Lay evidence includes statements that the Veteran began snoring, stopped breathing while sleeping, and complained of daytime somnolence while in service and since separation from service. Post-service medical records show that obstructive sleep apnea was diagnosed in June 2008. In March 2018, a private doctor stated the Veteran “more likely than not had sleep apnea” while in service. However, the doctor did not provide a rationale for the opinion. In order to be entitled to probative weight, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two. Nieves-Rodrigues v. Peake, 22 Vet. App. (2008). An August 2018 VA examiner stated that based on a review of the medical records and medical literature, obstructive sleep apnea did not have an onset while in service. In part, the examiner stated that the Veteran’s in-service complaints were “too vague” to be considered symptoms of sleep apnea. A January 2021 private doctor opined that obstructive sleep apnea had its onset in service. The doctor stated that the Veteran’s in-service complaints were not vague, but rather an indication of obstructive sleep apnea symptoms which should have been evaluated. The examiner noted that medical personnel did not frequently inquire about or test for obstructive sleep apnea at time of Veteran's service, and medical literature supported significant delays in the diagnosis of obstructive sleep apnea. The Board finds that the evidence for and against the claim for entitlement to service connection for obstructive sleep apnea are in relative equipoise. Therefore, reasonable doubt is resolved in favor of the Veteran, and the Board finds that obstructive sleep apnea had its onset in service and continued since separation from service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for bilateral plantar fasciitis with right heel spur is remanded. The Veteran asserts that bilateral plantar fasciitis with a right heel spur is the result of a service-connected bilateral knee disability. In the May 2020 Joint Motion, the parties agreed that the Board did not provide an adequate statement of reasons or bases for relying on a July 2018 VA examiner opinion in denying service connection for bilateral plantar fasciitis. Allday v. Brown, 7 Vet. App. 517 (1995). Specifically, neither the Board nor the examiner addressed evidence of an altered gait and, in particular the Veteran's testimony, medical background, and the theory that altered gait caused tight heel cords that ultimately led to plantar fasciitis. The Board finds that remand for a VA examination is necessary. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner who has not previously examined the Veteran to determine the nature and etiology of bilateral plantar fasciitis and a right heel spur. The examiner must review the claims file and should note that review in the report. The examiner should provide a complete rationale for all requested opinions. The examiner should provide the following opinions: (a) Opine whether it is at least as likely as not (50 percent probability or greater) that plantar fasciitis with right heel spur had its onset in service or is related to service or any event, injury, or disease during service. The examiner must discuss the in-service diagnosis of plantar warts and the Veteran’s reports of prolonged standing. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that plantar fasciitis with right heel spur was caused by any service-connected disability to include a bilateral knee and lower back disability. The examiner must discuss the Veteran’s contention that bilateral knee and or back pain caused plantar fasciitis and heel spurs due to an altered gait, reduced range of motion in the ankles, and tightening of the heel cords. The examiner must explain whether any evidence of record and whether any medical literature supports the Veteran’s contention. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that plantar fasciitis with right heel spur has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include bilateral knee and back disabilities, or any altered gait due to those disabilities. (d) If there is another likely etiology for bilateral plantar fasciitis with right heel spur, that should be stated. A clearly stated rationale with references to the record, diagnostic tests, and medical literature and research should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.O., 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.