Citation Nr: 21025633 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-16 003A DATE: April 28, 2021 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT The preponderance of the evidence is against finding that sleep apnea began during his active military service or that it is otherwise related to an in-service injury, disease, or event. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1971 to July 1973, from November 1990 to January 1991, and from April 2006 to July 2007. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions dated January 2009 and April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO). The January 2009 rating decision denied service connection for hypertension, and the April 2010 rating decision denied service connection for sleep apnea. In June 2017, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. The Board remanded the case for further development in January 2018, December 2019, and December 2020. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea, which was first diagnosed in 2009, nevertheless started during his service or is the result of his service. At his June 2017 Board hearing, he testified that he started having sleep problems during active duty from 2006 to 2007. He stated he had difficulty sleeping and daytime sleepiness during his deployment to Kuwait. In March 2009 statements, P.H., H. W. and L.W. wrote that they witnessed on many occasions the Veteran complaining of lack of sleep and falling asleep during daytime during the deployment. In a March 2009 statement, J.S. also wrote that he shared a room with the Veteran during the deployment and that he heard and saw the Veteran stopped breathing in the night sometimes or seemed ot choke and it would wake him up. But while competent to report what they saw and heard, they have not been shown to also be competent to diagnose sleep apnea. The Veteran’s service treatment records do not contain a diagnosis of sleep apnea and are unremarkable for a sleep disorder other than his report of insomnia for six months during his November 1990 examination. On a June 2007 post-deployment survey, the Veteran denied experiencing sleep problems. After separation from service, although a February 2009 VA pre-op screening indicated that the Veteran did not have sleep apnea although his past medical history of sleep disturbance was noted. In a May 2009 VA mental health clinic note, the Veteran complained of “not sleeping well.” He related that he had poor sleep since returning from deployment in the summer of 2007. He was concerned that he might have sleep apnea because he sometimes had a hard time staying awake during the day and that a sleep study was scheduled. A July 2009 primary care note shows that the Veteran received a diagnosis of obstructive sleep apnea and Continuous Positive Airway Pressure (C-PAP) machine was pending. A January 2010 VA examiner confirmed a current diagnosis of obstructive sleep apnea with a formal diagnosis in June 2010. The VA examiner noted that although service treatment records mentioned insomnia and sleep problems in 1990 and 1994, the Veteran’s 2007 separation examination showed no complaint of sleep problems; he then complained again of sleep problems in the 2009 timeframe. The examiner stated that “[d]ue to this lapse of symptoms and silence of the record at the end of his activation, I would have to resort to mere speculation to distinguish whether or not [(the Veteran’s)] sleep problems that he experienced in the 1990s are related to his present obstructive sleep apnea. In December 2019, the Board remanded this claim for a new medical opinion considering the lay statements from the Veteran and his former fellow service members. In February 2020, the Veteran underwent a VA examination for his sleep apnea. The Veteran reported history of sleep problems in early 1990s but stated it cleared. He then noted problems with sleep in April 2006 noting difficulty with maintaining sleep. He would have morning fatigue and hypersomnolence during that time. This continued during deployment from 2006 to 2007. Per the Veteran, no snoring was observed by others. However, he was noted to have fatigue and hypersomnolence while on active duty. The examiner opined that it would be less likely than not the Veteran’s obstructive sleep apnea is related to service. The examiner provided the following rationale: In the absence of complex symptoms typical of osa [OSA] during svc [(service)] (which is the case with this veteran), it would less likely than not osa incurred during svc based on history alone. In addition, no sleep complaints noted during his last TOD or upon entry into VA in 2007 to relate osa to svc period. Sleep complaints noted later with eventual osa diagnosis in 2009. However, in its December 2020 remand, the Board found that a supplemental opinion was needed to clarify what complex symptoms typical of OSA that were absent during the Veteran’s service later manifested by the time of the initial diagnosis in 2009. In February 2021, another VA examiner explained that the Veteran’s complaints of fatigue and somnolence in 2006 were most likely due to lack of sleep due to difficulty maintaining sleep. The examiner noted that snoring, unrestful sleep, gasping, trouble sleeping, and insomnia are pathognomonic (specifically characteristic or indicative of a particular disease) for sleep apnea, but the Veteran claimed no reports of snoring during a previous VA examination. The Board observes that the examiner actually stated that “[s]noring, unrestful sleep, “gasping,” “trouble sleeping,” insomnia are not pathognomonic for sleep apnea (emphasis added),” apparently by mistake. In the context of the reasoning provided following this seemingly misspoken sentence, the examiner is clearly assuming that snoring indeed is one of the pathognomonic symptoms for sleep apnea. The examiner further noted that it was not until 2009 when the Veteran was considered obese was a sleep study ordered and OSA was diagnosed. Given the evidence, the examiner found that no nexus to active duty existed. The VA medical opinion disassociating the Veteran’s sleep apnea from his time in service reflects that the examiner considered the statements from the Veteran and his fellow servicemembers that he was fatigued and fell asleep during daytime a lot, that the Veteran believes that his sleep apnea began in 2006 (so during his deployment), although he was not diagnosed with sleep apnea in 2009. In essence, the examiner had the pertinent facts as reported by the Veteran and as noted in the available records. Nevertheless, the February 2021 VA examiner found that the Veteran’s sleep apnea is less likely as not related to his service and specifically noted that it was not related to the Veteran’s complaints of sleep problems in service. The examiner’s rationale was based on a review of the claims file, an interview of the Veteran, and the examiner’s clinical knowledge what complex symptoms are required for a diagnosis of sleep apnea. The VA examiner’s unfavorable opinion is probative (competent and credible) because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This February 2021 VA examiner’s medical opinion is persuasive evidence weighing heavily against the Veteran’s claim. The Board acknowledges the lay statements that the Veteran seemed to stop breathing while sleeping at night in service; however, even assuming for the sake of argument that this happened in service, that is not tantamount to concluding he had sleep apnea while in service. Neither the Veteran nor his fellow servicemembers commenting on his behalf are competent to state that the reason for any sleep-related problems in service are due to the Veteran’s currently diagnosed sleep apnea. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). For these reasons and bases, the preponderance of the evidence is against the claim, so the benefit of the doubt rule is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. Unfortunately, this issue requires yet another remand. In its December 2020 remand, the Board found the VA medical then of record was inadequate because it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458 (1993) (medical opinion based on an inaccurate factual premise has no probative value). Specifically, a February 2020 VA examiner suggested that the onset of the Veteran’s hypertension was around 1994 or 1995. However, that examiner did not review the November 1990 physical examination report noting that the Veteran’s reported history of high blood pressure and the examining physician’s remark regarding hypertension medication having been discontinued in 1975. In February 2021, another VA examiner provided an unfavorable nexus opinion and stated that there was no evidence of chronicity of care or a diagnosis of hypertension until 1995 per available evidence. However, it appears that the examiner again failed to consider any service treatment records from the Veteran’s first active duty period. Of note, the Veteran reported a history of high blood pressure in May 1973. A January 1972 service treatment record also show that he complained of headaches from high blood pressure. The examiner also did not address the November 1990 examining physician’s remark regarding hypertension medication having been discontinued in 1975. The Board finds that this opinion is insufficient, therefore inadequate. As the February 2021 VA examiner’s opinion is inadequate, it does not comply with the Board’s remand directive. Stegall v. West, 11 Vet. App. 268 (1998) (a previous remand confers upon the claimant, as a matter of law, the right to compliance with the remand orders). Consequently, another medical opinion is required to adequately decide the merits of the claim. The matters are REMANDED for the following actions: 1. Obtain all updated VA treatment records from the VA Medical Center in North Little Rock, Arkansas and any associated outpatient clinics dated from December 2020 to the present. All records and/or responses received should be associated with the claims file. 2. Forward the Veteran’s claims file to a VA examiner with the appropriate expertise for a medical opinion to determine the etiology of his currently diagnosed hypertension. A VA examination should be scheduled, if necessary. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether the Veteran’s currently diagnosed hypertension is at least as likely as not (50 percent probability or more) etiologically related to his military service, specifically including the reported symptoms of high blood pressure on the November 1990 physical examination report. In rendering this opinion, the examiner must specifically address the Veteran’s reported history of high blood pressure in May 1973, the January 1972 service treatment record showing complaints of headaches from high blood pressure, and finally, the November 1990 examining physician’s remark regarding hypertension medication having been discontinued in 1975. The examiner is asked to elicit information from the Veteran regarding current symptoms and complaints through the years, and fully consider the Veteran’s lay statements regarding the onset and symptoms of the claimed disability. The examiner should address whether any claimed symptoms in service are consistent with any current disorder. A complete rationale must be provided for any opinion stated, to include reference to current clinical findings and/or documents in the claims file. 3. After completing the above development, and any other development deemed necessary, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.