Citation Nr: 21040336 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 11-26 839 DATE: July 3, 2021 ORDER Entitlement to service connection for a sinus disorder is dismissed. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. Prior to the promulgation of a decision, in a May 2021 written statement, the Veteran withdrew his appeal for service connection for a sinus disorder. 2. Resolving all reasonable doubt in favor of the Veteran, his sleep apnea is directly related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for a sinus disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 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, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to February 1972 and from January 2007 to June 2008, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and March 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the claim for sleep apnea was first denied by the Board in an April 2018 decision, which subsequently was vacated by the United States Court of Appeals for Veterans Claims (Court) in January 2019 following a January 2019 Joint Motion for Remand (JMR). Subsequently, in June 2020, the Board denied the claims on appeal, and the Veteran appealed the decision to the Court. In a February 2021 Order, pursuant to a February 2021 JMR, the Court vacated the Board's June 2020 decision and remanded the claims for action consistent with the terms of the parties' JMR. In September 2013, the Veteran testified before a Veterans Law Judge (VLJ), who has since retired from the Board. A transcript of the hearing is associated with the claims file. A November 2017 letter notified the Veteran that the VLJ who conducted the September 2013 hearing was no longer employed at the Board and afforded him an opportunity for an additional hearing. In November 2017, the Veteran responded and indicated that he did not want another Board hearing. Therefore, the Board finds that there is no hearing request pending at this time. The Board also notes that the Veteran's current representative did not receive a copy of the Board's March 2021 letter in which it informed the Veteran that he had 90 days to submit additional evidence and/or argument. However, as the Veteran has withdrawn his claim for a sinus disorder and the Board is granting the only remaining claim on appeal, the Board finds no prejudice in proceeding with a decision at this time. 3. Entitlement to service connection for a sinus disorder. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. Here, in a May 2021 signed statement to the Board, the Veteran stated that he, "requests [the] appeal of service connection for a sinus disorder be withdrawn, as [he] no longer wishes to pursue the claim." As the Veteran has indicated that he wishes to withdraw his claim for a sinus disorder, no allegation of error of fact or law remains before the Board for consideration with regards to that claim. 38 C.F.R. § 19.55(c). Accordingly, the Board does not have jurisdiction to review the appeal, and it must be dismissed. 4. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. The Veteran contends that his sleep apnea is either directly related to his active military service or secondary to his service-connected PTSD. For the reasons that follow, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition to service connection on a direct basis, service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). Preliminarily, the Board notes that although the Board indicated that the Veteran was considered a Persian Gulf veteran based on his service in Afghanistan in its June 2020 decision, which has since been vacated by the Court, service in Afghanistan is not considered Southwest Asia service for the purposes of presumptive service connection under 38 C.F.R. § 3.317 (a); see Cox v. McDonald, 28 Vet. App. 318 (2016). Accordingly, the provisions of 38 C.F.R. § 3.317(a)(1) do not apply. Turning to the evidence of record, there is no dispute that the Veteran has a current diagnosis of sleep apnea. Accordingly, the first element of service connection has been established. The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to sleep apnea. On his August 2008 post-deployment assessment, the Veteran did not report "yes" to trouble sleeping. The Veteran primarily contends that his sleep apnea initially began during his 2007-2008 deployment. In a February 2011 lay statement, a fellow soldier who served with the Veteran reported that the Veteran had difficulty sleeping in service. In a September 2011 lay statement, a fellow soldier, B.S., reported that the Veteran would toss and turn restlessly in his sleep, snore, and sometimes choke while snoring in his sleep. He also reported that the Veteran would wake up as tired as those around him who did not sleep well due to the Veteran's sleep behaviors. In a June 2013 statement, another fellow soldiers, D.B., reported that he witnessed the Veteran snore very loudly and have difficulty breathing while sleeping during a flight. He reported that he woke the Veteran and informed him of his sleep problem and that all of the passengers on the flight were uncomfortable due to the sleep behaviors. At the September 2013 hearing, the Veteran testified that while on active duty he experienced symptoms such as lack of sleep, being tired the next day, and snoring. An etiology opinion was first obtained in December 2012. However, the examiner only addressed whether the Veteran's sleep apnea was related to environmental exposures in Afghanistan and did not address whether the Veteran's sleep apnea first manifested during active duty. See also January 2013 addendum opinion. Pursuant to a September 2014 Board remand, another etiology opinion was obtained in December 2014 to address whether the Veteran's sleep apnea began during his active duty service. The examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred during his active service. He reasoned that while he did not doubt the credibility of the Veteran's buddy statements, he could not conclude that sleep apnea began in service based on those statements alone. He also noted that there was nothing in the evidence of record other than those statements that suggested sleep apnea began in service. In a June 2016 remand, the Board determined that further clarification was necessary regarding whether the Veteran's sleep apnea originated during his active service. Thus, an additional opinion was obtained in September 2016. The September 2016 VA examiner opined that sleep apnea was less likely than not incurred in service. He reasoned that STRs showed no definitive diagnosis of sleep apnea and that the symptoms noted were nonspecific and not indicative of a sleep condition. In the January 2019 JMR, the parties agreed that the opinion did not provide a fully articulate rationale as the examiner did not explain what symptoms he considered and why they were nonspecific. Thus, pursuant to an August 2019 Board remand, an additional etiology opinion was obtained in December 2019. The examiner opined that the Veteran's sleep apnea was less likely than not incurred in service. She reasoned that there were no complaints of difficulty sleeping in service. She also stated that snoring was not pathognomonic for sleep apnea and could be caused by other factors, such as the Veteran's personal history of alcohol use. She noted that sleep apnea was caused by upper airway blockage and that risk factors included obesity, enlarged tonsils, excessive overbite, deviated septum, large neck circumference, and smoking. In the February 2021 JMR, the parties agreed that the December 2019 opinion did not substantially comply with the Board's August 2019 remand as the examiner did not address the reported in-service symptoms other than snoring (i.e. lack of sleep, daytime fatigue, and choking) and did not indicate which risk factors of sleep apnea applied to the Veteran. In May 2021, the Veteran submitted an April 2021 private opinion by a physician's assistant, M.H., who opined that it was more likely than not that the Veteran's sleep apnea was present in service. M.H. explained that one of the most common symptoms of sleep apnea include daytime fatigue and drowsiness, which the Veteran reported experiencing in service, and explained why sleep apnea causes such symptoms. He further noted that snoring, choking in sleep, witness apnea/choking, difficulty with sleeping, and insomnia, all of which the Veteran reported experiencing in service, are classic symptoms of sleep apnea. He also explained that the Veteran does not have any of the organic causes/risk factors of sleep apnea, such as tonsillar hypertrophy, excessive overbite, deviated nasal septum, enlarged neck circumference, or increased weight. With regards to the Veteran's weight, he noted that the Veteran actually lost weight during his active service. Additionally, he noted that while the December 2019 opinion attributed the Veteran's snoring to alcohol consumption, he reported that the Veteran served in a dry platoon. Thus, in light of the foregoing, he concluded that the Veteran's sleep apnea was present during his active service. The Board finds the April 2021 private opinion, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, is the most probative evidence of a nexus in this case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, M.H. addressed all of the Veteran's reported symptoms in service and explained why they were likely indicative of sleep apnea. He also addressed the various risk factors associated with sleep apnea and explained why the Veteran did not have such factors. None of the VA opinions addressed all of the Veteran's reported symptoms in service and explain why they were not indicative of sleep apnea. While the December 2019 VA examiner addressed the in-service report of snoring, she attributed such to alcohol use. However, while the Veteran did develop alcohol abuse following service, the evidence of record does not indicate that he suffered from such during service. The Veteran did not report any alcohol consumption on his 2008 post-deployment assessment, and alcohol consumption was not noted as a concern. Such supports the report that the Veteran's platoon during deployment was dry. In light of the foregoing, after resolving doubt in the Veteran's favor, the Board finds that service connection for sleep apnea is warranted. Accordingly, the claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, 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.