Citation Nr: 22017247 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-07 065 DATE: March 24, 2022 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected skull piece removal, status post-surgical resection of cerebellar astrocytoma tumor, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the competent evidence of record is at least in equipoise as to whether the Veteran's currently diagnosed obstructive sleep apnea is directly related to service; sleep apnea has also been linked to service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected skull piece removal, status post-surgical resection of cerebellar astrocytoma tumor, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1979 to August 1982 and from June 1985 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously addressed at a virtual hearing before the Board in May 2020, at which time the record was left open for ninety days for the Veteran to submit any additional evidence relating to his claim. See, May 2020 Hearing Transcript. 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. 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); Jandreau, supra. 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). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). 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 most probative evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Sleep Apnea The Veteran and his representative assert that he is entitled to service connection for obstructive sleep apnea because he has always been on "highspeed" since service, frequently snoring and drinking 10 to 14 cups of coffee a day to stay alert, and that residuals of his brain tumor, which he is currently service connected at 50 percent, has also contemporaneously obstructed his sleep pattern. See, May 2020 Board Hearing Transcript. See, June 2019 VA Form 21-4138 Statement in Support of a Claim. 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 obstructive sleep apnea following a sleep study conducted in 2014, and this diagnosis was confirmed by a VA examiner in January 2017. Accordingly, the first element for establishing service connection for his sleep apnea has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records are silent for in-service treatment or a diagnosis of obstructive sleep apnea. However, during his May 2020 Board Hearing, the Veteran testified to experiencing a pattern of interrupted sleep and feeling lethargic, including severe snoring while in service, that continued post service, a fact the Veteran's spouse of over 30 years has also attested to. To that end, the Veteran has provided a "buddy" statement from his spouse (C.L.Z.), whom he has been married to since July 1989 (during the Veteran's second tour of duty), describing that since then, she had observed that the Veteran would awaken "around 3:00 am most mornings, gasping for air and snorting; after nudging him to turn over, sometimes he would just get up and watch TV or try to go back to sleep; however, that on numerous occasions, the Veteran would have to sleep in the spare bedroom, and that this became his routine." Further, that the Veteran's disruptive sleep pattern continued post service, including being lethargic, always having to drink several cups of coffee to stay alert, until he subsequently sought medical help, which was when he was diagnosed with sleep apnea. See, July 2020 "buddy" Statement from C.L.Z. The Board notes that symptoms of sleep apnea are capable of lay observation, and as the Veteran has been consistent with his statements of obstructive sleep pattern, which are corroborated by this supporting competent statement, the Board finds these lay statements credible and of significant probative value. 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). With regards to the final element of his claim, a nexus linking the Veteran's current obstructive sleep apnea to his active service, the Board notes that there is no opinion of record with regards to direct service connection. However, the Board finds that the Veteran's testimony and the statement of his spouse concerning the same symptoms that have continued since service and that were ultimately diagnosed as sleep apnea in 2014 is strong circumstantial evidence that the condition is directly related to the Veteran's period of active service. As to secondary service connection, another basis of the Veteran's claim, the January 2017 VA examiner found a negative nexus, citing as follows: MRR confirms veteran had a sleep study which confirmed a diagnosis of OSA. OSA occurs due to oropharyngeal airway obstruction while supine. SKULL PIECE REMOVAL, SP SURGICAL RESECTION OF CEBELLAR ASTROCYTOMA TUMOR is less likely to affect oropharygeal airway while supine and is not an established cause of obstructive sleep apnea. The Board finds this opinion conclusory, and thus inadequate, as the examiner failed to provide a medical explanation to support his negative nexus opinion. Furthermore, the examiner checked the box for a positive nexus, while providing a negative opinion, making this opinion internally inconsistent, and the issue of direct service connection was not addressed. In providing a requested clarifying opinion in January 2019, the VA examiner still found a negative nexus, this time asserting as his bases that "The sleep apnea is less likely as not secondary to the SC skull piece removal, post-surgical resection of cebellar astrocytoma tumor because OSA is caused by oropharyngeal airway obstruction while supine and is less likely to be caused by skull piece removal s/p surgical resection of cerebellar astrocytoma. Skull piece removal s/p surgical resection of cerebellar astrocytoma is not an established cause of OSA." Thus, this opinion is still found to be inadequate to support the examiner's negative nexus because the examiner has again failed to adequately explain why it is less likely that there is a lack of causation or correlation between the Veteran's OSA and the residual effect of his brain tumor surgery. On the other hand, in June 2020, the Veteran submitted a positive nexus opinion from a neurologist from Walter Reed National Military Medical Center to support his claim for secondary service connection which the Board finds more persuasive. The neurologist opined as follows: After a review of all the pertinent records, it is my professional opinion that the veteran's claimed condition of obstructive sleep apnea (G47.33) is at least as likely as not related to his brain injury resulting from surgical resection of a brain tumor during his active military service. To support his rationale, this neurologist cites to competent and credible medical and scientific studies that show a strong correlation between OSA and brain injury, including specific symptoms, which are manifested by the Veteran, including lethargy and balance-related problems. Further, the neurologist also described in detail what the Veteran's brain tumor removal surgery entailed, the post-surgery findings, and thoroughly explained the significance of such, and how these findings correlate to the Veteran's currently diagnosed OSA. Although these studies do not by themselves provide a nexus between the residuals of the Veteran's brain tumor and OSA, they show a strong correlation that lends significant support that brain injury can aggravate OSA, for which the neurologist has provided a positive nexus. Given these facts, the Board assigns this opinion a high probative value. However, as mentioned previously, the Veteran's statements and his spouse outlining his current symptoms and how they are the same as the symptoms the Veteran experienced in service, 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 the evidence is at least in equipoise, and that service connection for sleep apnea as directly related to service is warranted. Parenthetically, while the Board further notes that service connection for sleep apnea is similarly appropriate on a secondary basis, as this could potentially result in a lesser benefit, the Board wishes to make it clear that service connection in this case is being granted as directly related to service. 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.