Citation Nr: 21025454 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-15 426 DATE: April 28, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for lumbosacral strain is granted. Entitlement to service connection for right shoulder strain is granted. Entitlement to service connection for left shoulder strain is granted. Entitlement to service connection for left hand disability manifested by pain is granted. Entitlement to service connection for bilateral pes planus on an aggravation basis is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service. 2. The evidence is at least evenly balanced as to whether the Veteran’s lumbosacral strain is related to his active duty service. 3. The evidence is at least evenly balanced as to whether the Veteran’s bilateral shoulder strain is related to his active duty service. 4. The evidence is at least evenly balanced as to whether the Veteran’s left hand disability manifested by pain is related to his active duty service. 5. The evidence is at least evenly balanced as to whether bilateral pes planus, noted at entry into service and therefore considered a preexisting disability, was aggravated by active military service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for lumbosacral strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for bilateral shoulder strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for left hand disability manifested by pain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral pes planus, on the basis that a preexisting disability was aggravated by active military service, are met.  38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to February 1990 and November 1990 to June 1997. In a November 2011 administrative decision, a Department of Veterans Affairs (VA) Regional Office (RO) found that only the Veteran’s period of service from August 6, 1986 through February 5, 1990 was considered honorable service. His service from November 30, 1990 through June 16, 1997 was determined to be dishonorable for VA purposes. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the VA RO that, among other things, denied the claims of service connection for sleep disorder (also claimed as insomnia and sleep apnea), joint pain, and bilateral pes planus. In November 2018, the Veteran testified during a videoconference Board hearing. A transcript of that hearing is of record. In April 2019, the claims of service connection for sleep disorder, joint pain, and bilateral pes planus were remanded by the Board for further development, to include obtaining VA examinations.  As the Board is granting those claims of service connection in full, discussion of compliance with the Board’s April 2019 remand instructions is unnecessary in regard to those claims.  Stegall v. West, 11 Vet. App. 268 (1998).  As a final preliminary matter, the Veteran claims he experiences joint pain, to include joint pain involving his hands and back. However, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), a claim should not be limited to the disorder as characterized by the veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence. As discussed further below, the Veteran was diagnosed with lumbosacral strain and bilateral shoulder strain during the appeal period. Therefore, the Board will adjudicate his claim of joint pain as claims of service connection for lumbosacral strain and bilateral shoulder strain. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Entitlement to service connection for sleep apnea The Veteran contends he has experienced sleeping problems since his first period of service when he worked 24-hour guard shifts. He testified during his October 2018 Board hearing that he would work 24 hours a day on guard duty, then be off 24 hours. During a November 2019 VA examination, the VA examiner confirmed the Veteran’s June 2010 diagnosis of obstructive sleep apnea. The Veteran reported during the examination that he could not get good sleep in service, and his roommates in the military told him he snored loud and stopped breathing in his sleep. The VA examiner found that it was less likely than not that the Veteran’s sleep apnea had its onset in service. The examiner reasoned that there was no medical correlation between the Veteran’s active duty service and his sleep apnea diagnosis in 2010. Moreover, there were no complaints, diagnosis, or treatment during the Veteran’s active duty service for sleep apnea. For the following reasons, entitlement to service connection for sleep apnea is warranted. The Veteran has a current diagnosis of sleep apnea from a June 2010 sleep study. Thus, he meets the current disability requirement. The Veteran is competent to describe symptoms that he experienced in-service, or at any time after service, when the symptoms he experienced were perceived directly through the senses. 38 C.F.R. § 3.159(a)(2) (lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to describe observations). Similarly, the Veteran’s roommates were competent to report to the Veteran that they witnessed the Veteran’s various sleep apnea symptoms, as they were within the realm of their personal experience and are capable of lay observation. There is nothing to explicitly contradict the Veteran’s and the roommates’ reports, thus, they are credible and competent.  Maples v. Wilkie, No. 18-2016 (Vet. App. Feb. 11, 2019) (lay evidence can be sufficient to support a claim for service connection for sleep apnea); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The November 2019 VA examiner’s opinion is inadequate as she based her opinion, in part, on the Veteran’s lack of reports of sleep apnea in-service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that the VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). To the extent that the grant of service connection in these matters are based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.”  Id. at 1335.  At this point, the Board could remand the claim for a VA examination or opinion.  However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)).  For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in-service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for lumbosacral strain, bilateral shoulder strain, and left hand disability manifested by pain The Veteran contends his back, bilateral shoulder, and left hand disabilities began in-service and have continued since his separation from service. Specifically, the Veteran reported during his November 2019 VA examination that his back and shoulder pain began during his first enlistment when he slept on tanks, on the floor, and lifted heavy projectiles in service over a period of three to four years. He has continuously had back pain and stiffness, which has gotten worse as he has gotten older. He also has bilateral shoulder pain daily, with difficulty raising his arms and lifting objects. The Veteran additionally reported that he experienced pain bending his fingers and gripping items, especially during cold or rainy weather. A September 1988 service treatment record indicated the Veteran experienced a right shoulder separation after falling on his right arm. A November 1989 service treatment record noted left hand pain status post DUI. The VA examiner found during the November 2019 VA examination that the Veteran’s bilateral shoulder and lumbosacral strain were less likely than not related to service. In regard to the Veteran’s bilateral shoulder strain, the VA examiner reasoned that there was no medical evidence of chronic bilateral shoulder condition complaints, diagnosis, or treatments during active duty service. There was also no medical evidence to suggest the Veteran’s current bilateral shoulder strains are related to the resolved first degree right shoulder separation. As to the Veteran’s lumbosacral strain, there was no evidence or diagnosis of chronic back pain during active duty service. The Veteran’s report of medical histories completed during active duty examinations were normal for recurrent back pain. Thus, there was no evidence to suggest the Veteran’s current lumbar strain is related to active duty service. For the following reasons, entitlement to service connection for lumbosacral strain, bilateral shoulder strain, and left hand disability manifested by pain is warranted. The November 2019 VA examiner noted the Veteran’s diagnoses of lumbosacral and bilateral shoulder strain. Thus, the Veteran meets the current disability requirement. Moreover, the Veteran competently and credibly reported during his November 2019 VA examination that he experienced left hand pain symptoms. Jandreau, 492 F.3d at 1377. While there is no specific diagnosis with regard to the Veteran’s left hand pain symptoms, the Court made clear in Saunders that a diagnosis is not required in order to satisfy the current disability requirement, and pain or other symptoms can constitute disability if they cause impairment in earning capacity.  Saunders, 886 F.3d at 1364-65.  Given the above evidence showing impairment in earning capacity due to left hand pain symptoms, the Board finds that the Veteran meets the current disability requirement.  The Veteran’s DD Form 214 reflects that his military occupational specialty was that of a Cannon Crewmember. He is competent to report his physical duties in service, and there is nothing to explicitly contradict his reports as they are not inconsistent with the evidence of record and the circumstances of his service. Jandreau, 492 F.3d at 1377. Therefore, the Veteran’s reports of in-service activities, which included sleeping on tanks, on floor, and lifting heavy projectiles are credible. 38 U.S.C. 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). In addition, a September 1988 service treatment record indicated the Veteran experienced a right shoulder separation after falling on his right arm. Thus, the Veteran meets the in-service injury or disease requirement. In regard to the Veteran’s left hand disability manifested by pain, a November 1989 service treatment record noted left hand pain status post DUI. An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty and not the result of the veteran’s own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 105; C.F.R. §§ 3.1(m), 3.301(a). Section 105(a) creates a presumption that an injury or disease incurred by a veteran during active service was incurred in the line of duty and not caused by the veteran’s misconduct. Thomas v. Nicholson, 423 F.3d 1279, 1283-84 (Fed. Cir. 2005). The government can rebut the presumption through establishing, by the preponderance of the evidence, that the injury or disease was caused by the veteran’s own willful misconduct. Id. at 1284-85. VA has defined willful misconduct as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. 38 C.F.R. § 3.1(n). The applicable regulations also exclude from the line of duty any injury or disease incurred during active military, naval, or air service that was the result of the abuse of alcohol or drugs. 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.301(a). However, the simple drinking of alcoholic beverage is not of itself “willful misconduct.” If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct. The abuse of alcohol is defined as the use of alcoholic beverages over time, sufficient to cause disability to, or death of, the user. 38 C.F.R. § 3.301(d). For the purpose of 38 C.F.R. § 3.301(d), alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability of the user. Id. In this case, there is no evidence of record, to include in the Veteran’s military personnel file, that he received a DUI during his first period of his enlistment. Therefore, the Veteran’s left hand disability manifested by pain is presumed to have been incurred in the line of duty as the preponderance of the evidence does not reflect that the left hand disability was caused by the Veteran’s own willful misconduct. The November 2019 VA opinions are afforded little probative value as they relied on the lack of contemporaneous medical evidence without considering the Veteran’s lay statements regarding continuous back and bilateral shoulder pain symptoms since his separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”).     The November 2019 VA opinion in regard to the Veteran’s left hand disability is inadequate because it considered evidence of record during the Veteran’s period of service that is considered dishonorable for VA purposes. 38 C.F.R. § 3.12. The Veteran is competent to report his continuous back, bilateral shoulder, and left hand pain symptoms in the years since service.  Jandreau, 492 F.3d at 1377 (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence).  There is nothing to explicitly contradict the Veteran reports, thus, they are credible and competent.  To the extent that the grant of service connection in these matters are based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.”  Id. at 1335.  At this point, the Board could remand the claim for a VA examination or opinion.  However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart, 21 Vet. App.at 508. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s lumbosacral strain, bilateral shoulder strain, and left hand disability manifested by pain are related to his active duty service.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for lumbosacral strain, bilateral shoulder strain, and left hand disability manifested by pain is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Entitlement to service connection for pes planus A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Here, the Veteran was noted to have moderate asymptomatic pes planus in the November 1985 enlistment examination report. Therefore, the presumption of soundness does not apply with regard to pes planus in this case. The issue therefore becomes whether the Veteran experienced an aggravation of preexisting pes planus in active military service. Aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in-service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service-connected unless the disease or injury is otherwise aggravated by service.  38 C.F.R. § 3.306(b)(1). Similarly, temporary or intermittent flare-ups of the preexisting disorder during service are not sufficient to be considered aggravation unless the underlying disability (as contrasted to symptoms) has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). If the preexisting disorder underwent an increase in severity during service, it is presumed to have been aggravated by service unless there is clear and unmistakable evidence that the increase was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) (“There is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service. This provision is known as the “presumption of aggravation”). The term “clear and unmistakable evidence” means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). It is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003). A June 1987 Report of Medical Examination noted the Veteran’s mild pes planus. In an October 1989 service treatment record, the Veteran complained of sore feet. He stated that the arches of his feet hurt whenever he stood or put pressure on them. During a June 2013 VA examination, the Veteran reported that his flat feet continued to bother him after entrance into the military, and he could not stand for a long time or march for long distances. He had pain on the use of both feet that accentuated on use of both feet. The VA examiner found that the Veteran’s bilateral pes planus was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran showed evidence of mild pes planus while on active duty. This is a congenital condition, and there was no evidence active duty caused or worsened the Veteran’s pes planus. An August 2017 VA x-ray noted the Veteran’s flat feet and bilateral foot pain. An October 2018 private treatment record documented the Veteran’s reports of chronic burning pain and numbness to his feet that has been bothering him for years. During a November 2019 VA examination, the examiner confirmed the Veteran’s diagnosis of pes planus. The Veteran reported that he began to have bilateral foot pain in early 1986 and that the boots he was assigned in the military hurt his feet with everyday wear. The Veteran noted he experienced aching and throbbing pain to the back of his heels and walked with a limp when he woke up. The VA examiner found that the Veteran’s bilateral pes planus, which clearly and unmistakably preexisted service, was not aggravated beyond its natural progression by an in-service, event, injury, or illness. The examiner reasoned that there was no medical evidence to suggest that the Veteran’s bilateral pes planus was aggravated beyond its natural progression during active duty. There was no further medical evidence of bilateral foot pain or complaints documented during active duty. For the following reasons, service connection for bilateral pes planus is warranted based on aggravation of a preexisting disability. The June 2013 VA opinion is inadequate as it did not utilize the correct standard of review to address aggravation. As discussed above, the correct standard is whether the disability was clearly and unmistakably not aggravated by service. The November 2019 VA opinion is inadequate as the examiner relied on the Veteran’s lack of medical treatment for his bilateral pes planus in-service without considering the Veteran’s lay statements regarding continuous bilateral foot pain symptoms both in and since separation from service. Buchanan, 451 F.3d at 1336 (VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The Veteran’s bilateral pes planus worsened during service given his competent and credible statements of foot pain in-service that resulted in worsening of bilateral pes planus in-service. There is no conflicting evidence of record, thus, aggravation is presumed. As noted above, the presumption of aggravation can only be rebutted by clear and unmistakable evidence that the increase was due to the natural progress of the disease. As indicated above, there is no such evidence in this case. The presumption of aggravation has not been rebutted, therefore, the Veteran’s preexisting bilateral pes planus noted at entry into service was aggravated by service. As the above evidence of record reflects that the Veteran has experienced bilateral pes planus symptoms since separation from service, reflecting a nexus between the current bilateral pes planus and the in-service aggravation, entitlement to service connection for bilateral pes planus on an aggravation basis is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.