Citation Nr: 21026371 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-45 363 DATE: April 30, 2021 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a back disability is remanded. FINDING OF FACT The Veteran’s currently diagnosed sleep apnea is not etiologically related to his military service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Prior History In February 2019, the Board found VA medical opinions dated March 2013, December 2013, and June 2016 inadequate regarding the Veteran’s claims for service connection for neck, bilateral shoulder, back, and hip disabilities because the opinions solely relied on the lack of documented evidence of treatment in the Veteran’s service records. Thereupon, the Board remanded the claims for further development, to include providing new VA examinations and obtaining medical opinions to help determine the etiology of the Veteran’s neck, shoulders, back, and hips disabilities. The Board deferred its decision regarding service connection for sleep apnea pending review of outstanding treatment records to be obtained on remand. See Board Remand dated February 22, 2019. On remand, VA obtained outstanding private and VA treatment records, and the Veteran was afforded VA examinations for neck, shoulders, back, and hips disabilities, and though not requested in the February 2019 remand, VA afforded the Veteran a sleep apnea examination, and VA medical opinions were obtained for these disorders. See VA medical opinions dated December 6, 2019. In January 2021, the Board found the December 2019 VA opinions inadequate and remanded the claims for addendum etiology opinions. The opinions, dated February 2021, have been associated with the claims file and reviewed. However, the Board finds there has not been substantial compliance with its January 2021 remand directives regarding the Veteran’s neck, bilateral shoulder, and back disabilities, as discussed in the remand section below. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Deficiencies in the February 2021 opinions are discussed in the remand section, below. Additionally, on further review, the Board finds the December 2019 VA opinion regarding the etiology of the Veteran’s sleep apnea to be adequate and probative, which is addressed further in the adjudication of the service connection claim herein. Regarding the Veteran’s claim for service connection for bilateral hip strain, the RO’s February 2021 grant of service connection for right and left hip strain as secondary to the service-connected right and left knee disabilities is considered a full grant of the benefits on appeal for those claims. As such, the issues are no longer before the Board for appellate consideration. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board is aware of the Court’s decision in Quinn v. Wilkie, 31 Vet. App. 284, 292 (2019), which held that each time a legacy appeal (an appeal adjudicated prior to enactment of the Appeals Modernization Act) is returned to the Board the claimant is entitled to a Board hearing, even if a hearing was held previously. In this case, the Veteran appeared at a Board hearing before the undersigned in August 2018. To date, the Veteran has not requested another hearing. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative means of establishing service connection is showing continuity of symptomatology under 38 C.F.R. § 3.303(b); however, this alternative means is only available for certain “chronic disease” specifically enumerated under 38 C.F.R. § 3.309(a), and sleep apnea is not among the listed diseases. Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, certain disabilities require specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and therefore fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n. 4. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Sleep Apnea The Veteran asserts entitlement to service connection for sleep apnea he states is related to service. See, e.g., Notice of Disagreement received February 5, 2014. As an initial matter, the Board recognizes that the Veteran is currently diagnosed with obstructive sleep apnea. See VA medical opinion dated February 3, 2021; see also Private sleep study dated September 11, 2012. However, there is no evidence of any complaints of, or treatment for, sleep problems in the Veteran’s service treatment records. Moreover, the earliest post-service report of a possible sleep disability is reflected in March 2012 VA treatment notes reflecting that the Veteran reported apneic spells at night and poor sleep, and it was recommended that he undergo a sleep study. See VA primary care physician note dated March 28, 2012. In June 2012, a provisional diagnosis of unspecified sleep apnea was noted. See VA pulmonary outpatient consultation dated June 14, 2012. The Veteran underwent a sleep study at a private medical facility in October 2012, at which time he was diagnosed with obstructive sleep apnea. See Private sleep study dated September 11, 2012. There is no lay or clinical evidence of any earlier sleep problems following service. During the August 2018 Board hearing, the Veteran was asked if he had any symptoms of sleep apnea during service. He stated that he currently snores a lot but did not assert having any symptoms during service. See Board hearing transcript dated August 7, 2018 at pg. 15. During a December 2019 VA examination, the Veteran said he had a long history of snoring, but his wife, who also was present at the examination, said the Veteran stopped breathing in his sleep in about 2010. See VA sleep apnea examination dated December 6, 2019 at pg. 2. As noted above, the Board previously indicated that the December 2019 VA medical opinion regarding the etiology of the Veteran’s sleep apnea is inadequate, and an addendum opinion dated February 2021 was obtained pursuant to the Board’s January 2021 remand. However, on further review, the Board finds that the December 2019 VA examiner provided an adequate rationale for the opinion provided, which cites to the lack of evidence of sleep symptoms in the service treatment records and the fact that the Veteran reported the onset of sleep apnea symptoms 18 years after his separation from service. Notably, the February 2021 VA opinion is almost identical to the December 2019 opinion in language and reasoning. Both medical opinions are competent, credible and probative: They were authored by a licensed physician who reviewed the Veteran’s claims file and was therefore familiar with the Veteran’s symptoms, diagnoses, and treatment of his sleep apnea; the opinions are based on examination and interview of the Veteran and consideration of his lay statements and those of his spouse. Additionally, the examiner reviewed the evidence of record. The opinions are consistent with the medical evidence of record and contain clear conclusions with supporting data connected by reasoned medical explanations. See Nieves-Rodriguez, 22 Vet. App. at 301-02. Notably, there are no medical opinions or other competent medical evidence of record that weigh against the December 2019 or February 2021 VA opinions. Accordingly, the Board finds both opinions probative, competent, and persuasive medical evidence in this case. To the extent that the Veteran asserts that his sleep symptoms have been continuous since service, and while he is competent to report an observable symptom such as snoring, he has not been shown to be competent to make a determination as to diagnosis and causation, which falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n. 4. The Board emphasizes that the mere absence of evidence of treatment, for example after separation from service, does not contradict a veteran’s statements about his or her symptom history. Buchanan, 451 F.3d at 1336. However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a nexus between the disability and service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, the United States Court of Appeals for Veterans Claims, in Savage v. Gober, 10 Vet. App. 488, 496-97 (1997), agreed that in a case where the veteran failed to present medical nexus evidence relating a currently diagnosed disability to an in-service injury along with lack of evidence of treatments may bear on the credibility of the evidence of continuity. In this case, the Veteran has not submitted competent evidence of a nexus between his sleep apnea disability and his military service. Moreover, neither the post-service treatment records, the December 2019 VA opinion, nor the February 2021 VA opinion demonstrates a nexus between the Veteran’s current sleep apnea disability and service. Indeed, the absence of any clinical or lay evidence of sleep problems for 18 years after the Veteran’s separation from service in June 1992 weighs against a finding that his current sleep disability was present in service or in the years immediately after service. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for sleep apnea. The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection for sleep apnea must be denied. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is again necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2020). Once VA undertakes the effort to provide an examination or medical opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, as noted above, a Board remand confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall, 11 Vet. App. at 271. Here, the Board previously determined that December 2019 VA opinions regarding the etiology of the Veteran’s neck, shoulders, and back disabilities are inadequate because the opinions solely relied on the lack of documented evidence of treatment in the Veteran’s service records. See Board Remand dated January 22, 2021 at pgs. 3-4; see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that examination was inadequate where the examiner did not comment on the appellant’s report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). The January 2021 VA opinions reflect that the VA examiner essentially repeated the same rationale previously found to be inadequate in the December 2019 VA opinions regarding the etiology of the Veteran’s neck, shoulders, and back disabilities, with added verbiage describing the Veteran’s post-service symptoms, and noting that each disability would have been symptomatic in the intervening years if related to service. See VA medical opinions dated February 5, 2021. However, the VA examiner failed to explain why the currently diagnosed neck, shoulder, and back disabilities are of such a nature that they would have been continuously symptomatic if related to in-service injuries. See Nieves-Rodriguez, 22 Vet. App. at 301-02. Therefore, the February 2021 VA opinions regarding the Veteran’s neck, shoulders, and back disabilities are inadequate. See Barr, supra. Accordingly, the claims are remanded to obtain addendum opinions addressing the etiology of the Veteran’s neck, shoulders, and back disabilities. See Stegall, supra; Barr, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, obtain addendum opinions from an appropriately qualified VA examiner OTHER THAN the examiner who authored the February 5, 2021 VA opinions, as to the nature and etiology of the Veteran’s neck, shoulders, and back disabilities. The claims file and a copy of this Remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The examiner’s review of the body of this Remand is strongly recommended to assist in avoiding errors that have rendered at least eleven (11) previous VA opinions inadequate. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinions. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a careful review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed neck, shoulders, and back disabilities since the date of claim in April 2012. (b) For each currently diagnosed neck, right and/or left shoulder, and back disability, provide an opinion as to whether it at least as likely as not (50 percent or greater probability) had its onset during active duty service or is otherwise casually or etiologically related to it. *In providing each opinion, please discuss and weigh (not merely reference) the Veteran’s testimony that the physical demands of his mechanic job in service caused the current disabilities. See e.g., (i) VBMS entry titled “Hearing Transcript” on 08/07/2018; and (ii) Service treatment record dated March 11, 1981 reflecting that the Veteran complained of pain after lifting his tool box (see VBMS entry with document type “STR – Medical,” receipt date 07/06/1994, at page 68). *The Board’s reference to evidence in this context should not be construed as a determination of its credibility. A complete rationale should be provided for all opinions. 3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.