Citation Nr: 21027012 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-02 048 DATE: May 4, 2021 ORDER Entitlement to service connection for carpal tunnel syndrome of the right hand is granted. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. Carpal tunnel of the right hand had its onset in service. 2. Sleep apnea had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for carpal tunnel syndrome of the right hand have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1991 to March 1995, from November 2004 to November 2005, and from March 2006 to July 2007. In May 2019, the Veteran testified at a video hearing before the undersigned and a transcript of that hearing has been associated with the claims. This matter was previously before the Board in October 2019, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in an October 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the October 2019 Board remand. SERVICE CONNECTION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for carpal tunnel syndrome of the right hand The Veteran contends that his right hand carpal tunnel syndrome is the result of his military service. Important for this case, he is already in receipt of service connection for carpal tunnel syndrome of his left hand. At the outset, the Board notes that the Veteran has been diagnosed with right hand carpal tunnel syndrome. See September 2020 VA examination report. The Veteran's service treatment records do not demonstrate any evidence of carpal tunnel syndrome during military service or at discharge therefrom; and examination of the Veteran's upper extremities, as well as his neurological condition, was repeatedly noted as normal. However, the Veteran's service treatment records do contain post-deployment questionnaires in which the Veteran reported tingling in his arms. See September 2007 Post-Deployment questionnaire. In a May 2007 treatment note, the Veteran reported that his arms frequently fell asleep at night. The Veteran himself testified to having symptoms during service which have continued since that time. In addition to the Veteran's account of continuing symptomology since service, the record contains other lay statements regarding the Veteran's right hand condition from fellow servicemembers. Both indicate that they witnessed the Veteran have difficulty with his right hand, and one indicated the Veteran told him during service that it was likely carpal tunnel. The Veteran was afforded a VA peripheral nerves condition in September 2020. The examiner diagnosed the Veteran with right carpal tunnel syndrome and in the history section of the examination report it was noted that the conditions had their "onset in the 1990s" with hand tingling, numbness, and pain. The Veteran reported those symptoms persisted at the time of the examination. He reported wearing a brace for the condition. The examiner opined that it was less likely than not that the Veteran's right hand carpal tunnel syndrome was incurred during military service. The only rationale provided was the absence of supporting evidence of a condition consistent with CTS during service. As factfinder, the Board has the responsibility to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). Here, the Board finds that the VA medical opinion lacks probative value as its factual basis is inaccurate and incomplete. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). The examiner did not explicitly address the Veteran's lay statement regarding the onset of symptoms, and did not have an opportunity to consider third party lay statements in the Veteran's claims file. The examiner does not address the Veteran's post-deployment complaints regarding tingling in his arms. The examiner based the negative nexus opinion solely on the perceived lack of medical evidence of the condition during active duty service. However, the lack of contemporaneous service treatment records documenting a complaint or diagnosis of a claimed condition during active service, alone, is an insufficient rationale for a negative opinion. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) The Veteran is competent to report the nature of his symptoms of carpal tunnel syndrome as well as their onset, and the Board finds him credible. See 38 C.F.R. § 3.159(a)(2) (defining competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 46970 (1994); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (explaining that lay evidence is credible when it is internally consistent and consistent with other evidence of record). He has reported that symptoms began in service, and service treatment records and lay statements from his spouse and fellow service-members support that contention. Consequently, the Board concludes that it is at least as likely as not that the Veteran's right carpal tunnel syndrome manifested during active duty service and there has been continuity of symptomatology since service. The Board finds the evidence to be at least in equipoise and, resolving the benefit of the doubt in the Veteran's favor, will grant the claim. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Entitlement to service connection for sleep apnea The Veteran asserts that he became symptomatic for sleep apnea during service and thus the condition had onset therein. At the outset, the Board notes that the Veteran has been diagnosed with severe obstructive sleep apnea following a sleep study in June 2014. Service treatment records are silent for diagnoses of sleep apnea. However, the Veteran's post-deployment questionnaire in September 2007 noted that he still felt tired after sleeping during the deployment. The Veteran's spouse submitted a statement noting that she observed the Veteran sleeping before and after his deployment to Iraq, and noted sleep patterns to include snoring and breathing issues that were not present prior to the Veteran's deployment. A fellow service member also submitted a statement indicating that he witnessed the Veteran snoring loudly when they were service together. As directed by the October 2019 Board remand, the RO obtained a VA opinion regarding the Veteran's sleep apnea condition in January 2020. The examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by his military service. The examiner's rationale consisted of noting that the Veteran's sleep apnea was diagnosed in 2014 and finding no documented diagnosis during active duty service. Essentially the examiner found that a nexus is not established because the condition was diagnosed approximately 7 years following separation from service. See January 2020 VA sleep apnea opinion. However, this condition is not always diagnosed in a timely manner. The Board finds the January 2020 opinion to be inadequate because the examiner improperly discounted the Veteran's credible statements regarding the in-service accident and relied primarily on negative evidence. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Considering the totality of the evidence, the Board finds that service connection is warranted for sleep apnea. The Board attributes great probative value to the Veteran's statements regarding the onset and continuity of symptoms. The Board recognizes that the Veteran was not diagnosed with sleep apnea until after his separation from active military service. However, the Veteran is considered competent and credible with respect to his reported symptoms and the onset of his symptoms. In light of the above competent medical evidence and consistent statements from the Veteran and fellow service-members, the Board finds the evidence is in equipoise as to whether the Veteran's sleep apnea had its onset in active duty service. The Board will resolve any doubt in favor of the Veteran and grant service connection for sleep apnea. 38 C.F.R. § 3.102; 38 U.S.C. § 5107 (b). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.