Citation Nr: 21032479 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-07 638 DATE: May 27, 2021 ORDER Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to an initial increased rating evaluation in excess of 10 percent for carpal tunnel syndrome of the right hand, is remanded. Entitlement to service connection for a left hand disorder, to include as secondary to service-connected carpal tunnel syndrome of the right hand, is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, his sleep apnea began in service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 2007 to October 2007, with additional Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. These matters were previously before the Board when the Veteran testified in June 2020 at a Board hearing conducted via videoconference before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file, and these matters have now been returned to the Board for further adjudication. 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). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. Sleep apnea does fall within this category. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). 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. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. 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. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for sleep apnea The Veteran and his representative assert that he is entitled to service connection for sleep apnea because his observable symptoms began while he was serving on active duty in the United States Navy and have continued ever since. Presumption of service connection is not applicable in this case, and as such service connection can only be granted based on direct service connection or secondary service connection. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran was diagnosed with mild obstructive sleep apnea (OSA) following a sleep study in April 2013, as confirmed by the May 2017 VA examination report. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records are silent for in-service sleep-related complaints or a diagnosis of sleep apnea. However, the absence of documented treatment in service is not fatal to a service connection claim. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be respiratory problems while sleeping, such as snoring. Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, the Board notes that the Veteran has been consistent in his statements that in retrospect, he believes his sleep apnea symptoms began around 2007 while in active service. The Veteran testified that although as Senior Chief he had his own room, his fellow soldiers who were assigned a room next to him constantly teased him about his snoring; that he was "trying to wake the dead." Further, his wife, M.W., has submitted a detailed report regarding what she observed when the Veteran returned from his deployment in Iraq in September 2007. She states that she noticed that his snoring was excessive, very loud, and that at times it appeared that the Veteran experienced respiratory disruption while he was sleeping; that it became such an issue that one of them will sleep on the couch. She also notes that even though the Veteran seemed to have gotten enough sleep during the day, including falling asleep frequently when he was sitting still, yet, he is regularly "snoring, tossing, turning and restless" which has had a negative impact in their lives. In addition, that she was the one that encouraged him to seek medical help, which eventually led to his obstructive sleep apnea diagnosis and the use of a CPAP machine. See, June 2020 sworn Correspondence from M.W. The Board notes that symptoms of sleep apnea are capable of lay observation, and as the Veteran has been consistent with his statements, which are corroborated by his spouse, M.W.'s supporting competent statement, the Board finds these lay statements credible and of significant probative value. Accordingly, the Board finds that the second element for establishing service connection, in-service occurrence, has been met in this case. As to nexus, the final element for service connection, evidence linking a current disability to active duty service, there is no nexus statement of record. Although a May 2017 VA examiner confirmed the Veteran's mild obstructive sleep apnea diagnosis, this examination report did not include an opinion regarding whether the Veteran's disability is at least as likely as not related to his active duty service, as the Veteran has asserted. Consequently, the Board finds the May 2017 VA examiner's opinion incomplete, and hence, inadequate. Given these facts, the Board has afforded this VA examiner's opinion with low probative value. Although there is no medical opinion on record linking or ruling out the Veteran's currently diagnosed obstructive sleep apnea with his military service, nonetheless, in corroboration of his report of disruptive sleep pattern in service, the Veteran has submitted a statement from his wife of thirty years (referenced above), who has known the Veteran since before his active service, in which she states that she has continuously observed that the Veteran snored very loudly as far back as right after his military exit. In her sworn statement, she also reported her observation that the Veteran appears to have been experiencing respiratory disruption right after his military exit, symptoms consistent with his subsequently diagnosed obstructive sleep apnea. The Board finds these statements provided by the Veteran's wife, M.W., competent and highly probative. In corroborating the Veteran's statements of in-service sleep problems, such statements establish the Veteran's disrupted sleep patterns, at least within a year of the Veteran's military exit, and in the absence of evidence to the contrary, the Board finds that in this case, these statements may serve as strong circumstantial evidence of a continuity of symptoms since service and the necessary nexus between the Veteran's sleep apnea and his military service. As such, in light of the Veteran's testimony regarding his disruptive sleep pattern during and after service, and the statements submitted by his wife, M.W., to corroborate those symptoms that were subsequently diagnosed to be consistent with obstructive sleep apnea, the Board finds that the competent evidence of record is at least in equipoise as to whether the Veteran's obstructive sleep apnea had its onset in service. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS FOR REMAND 1. Entitlement to an increased rating evaluation in excess of 10 percent for carpal tunnel syndrome of the right hand is remanded. The Veteran was granted service connection for his right hand carpal tunnel syndrome disability in an August 2010 rating decision, effective November 2, 2009, the date of his claim, based on the results of an EMG that showed mild nerve neuropathy of the right wrist. The Veteran filed a supplemental claim in March 2017, seeking an increased rating in excess of 10 percent, which was subsequently denied by the RO, and he is currently appealing. The Veteran later testified during his Board hearing in June 2020 that symptoms of his right-hand carpal tunnel syndrome have significantly worsened, to the extent hand surgery has been recommended. He has also submitted updated treatment records reflecting his reported increased symptoms, particularly numbness and tingling of both hands, noted as "bilateral trigger thumbs" that has been treated with periodic cortisone and tendon sheath injections. See, June 2020 Treatment Records. During his June 2020 Board hearing, the Veteran testified that his bilateral hand disability (has been subsequently diagnosed with carpal tunnel syndrome of both hands) negatively impacts his job as an instructor (he works as Federal Police Officer with the Department of Defense) because his fingers sometimes go numb during firearms training, at which time he has to put his weapon down, hold off the session a few minutes until his symptoms pass, and in some cases find another instructor to cover for him. Further, that he sometimes experiences numbness of his hands while driving long distances, and in such cases, he would have to pull over; that although he sleeps with hand braces to ease his symptoms, that he is still experiencing worsening symptoms. Consequently, the Board finds that a new examination is warranted to evaluate the current severity of the Veteran's bilateral carpal tunnel disability, including functional impact, prior to adjudication. Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to service connection for left hand disorder, to include as secondary to service-connected carpal tunnel syndrome of the right hand, is remanded. During the Veteran's July 2017 examination for his increased rating right hand carpal tunnel syndrome (CTS) claim, the Veteran was diagnosed with bilateral carpal tunnel syndrome, based on the results on an EMS study. As such, the Veteran has been subsequently diagnosed with left hand carpal tunnel syndrome. The Veteran is attributing his left-hand CTS to his active duty service, including putting weight on both of his hands to break a fall while in service. His Service Treatment Record (STR) appears to reflect a reference to such a fall. However, the July 2017 VA examiner opined that the Veteran's left-hand carpal tunnel syndrome is less likely than not proximately due to or the result of the Veteran's service-connected right-hand carpal tunnel syndrome (CTS), citing the following as his basis: "He is right hand dominant, thus he does most activities with right hand, even if he did more activities with left hand it would not account for CTS. It is very common to have bilateral CTS, THIS IS MOST LIKLY GENETIC AND OCCUPATION RELATED." The Board finds this opinion conclusory, unsupported by specific facts, and therefore inadequate. Furthermore, there are overlapping bilateral carpal tunnel symptoms (as noted above) which the examiner did not address, including offering no opinion with regards to direct service connection. Consequently, a new adequate VA examination is warranted before this issue can be adjudicated on its merits. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records and associate them with the Veteran's claims file. Associate all documentation generated in accordance with the records request with the Veteran's claims file, to include negative responses. 2. Regardless of the outcome in (1), schedule the Veteran for the appropriate VA examination to determine the current severity of his service-connected right-hand carpal tunnel syndrome, and the etiology of his left-hand disability, including his diagnosed left-hand carpal tunnel syndrome. The examiner must review the claims file and should note such review in the report, particularly the Veteran's private treatment records submitted in June 2020. Any indicated diagnostic tests and studies must be accomplished. The examiner should describe all symptomatology of the Veteran's bilateral carpal tunnel syndrome. The examiner should specify the nerves affected by the Veteran's left and right carpal tunnel syndrome respectively and provide an opinion as to the severity of any associated paralysis, neuritis or neuralgia (e.g., mild, moderate, moderately severe, severe). To the extent possible, any neurologic manifestations of the service-connected right carpal tunnel syndrome should be distinguished from those of any other right and left upper extremity disability (including neuropathy). (a). The examiner must opine whether the Veteran's left-hand carpal tunnel syndrome (or any other diagnosed upper extremity disability) is at least as likely as not (50 percent probability or higher) directly related to his active duty service. (b). The examiner must also opine whether the Veteran's left hand carpal tunnel syndrome (or any other diagnosed upper extremity disability) is at least as likely as not (50 percent probability or higher) proximately due to and/or aggravated by the Veteran's service-connected right-hand carpal tunnel syndrome. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability, as contrasted to a temporary worsening of symptoms. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion, to include lay reports of numbness and tingling during the period of appeal. The examiner must address the Veteran's June 2020 Board testimony that he experiences numbness of his fingers/hands while performing his job as a firearms training instructor and while driving long distances. The examiner is further advised that it is not necessary for pain, numbness and tingling to be attributable to a specific diagnosis or pathology to be considered a service-connected disability so long as the pain, numbness and tingling is productive of functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this regard, regardless of the response above, the examiner should state to what extent the Veteran's reported symptoms of his left-hand disability, including his carpal tunnel syndrome, results in functional impairment that impacts the Veteran's earning capacity. A complete rationale for all medical opinions provided is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. The Agency of Jurisdiction (AOJ) should ensure completion of the foregoing and any other necessary development for compliance with these Remand directives, and then readjudicate the Veteran's claims. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.