Citation Nr: 22018761 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 20-03 199 DATE: March 30, 2022 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to an increased evaluation for idiopathic swelling and trigger finger affecting the index and long fingers, currently rated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for idiopathic swelling and trigger finger affecting the ring finger, currently rated as zero percent disabling, is remanded. FINDING OF FACT The evidence is persuasively against a finding that the Veteran's post-service sleep apnea had its onset in service or is otherwise related to any in-service disease, injury or event. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1979 to February 1988. This case comes to the Board from a January 2018 decision of the Agency of Original Jurisdiction (AOJ), which denied increased ratings for the Veteran's service-connected disabilities of his right hand and fingers. The AOJ also indicated that it would continue to deny service-connected compensation for sleep apnea. Although the decision described the sleep apnea issue as a request to reopen a previously denied claim, the previous AOJ denial of sleep apnea, issued in July 2017, was less than one year old and had not become final in January 2018. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Moreover, the January 2018 decision determined that the AOJ would reopen the sleep apnea claim. Under these circumstances, the Board will consider the sleep apnea claim on its merits without first requiring the receipt of new and material evidence. In October 2021, the Veteran and his spouse testified before the undersigned at a virtual hearing. A transcript of that hearing is of record. Service Connection for Sleep Apnea Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a disability, a Veteran must show: (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. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The report of a sleep study, which indicates that the Veteran was diagnosed with moderate obstructive sleep apnea in April 2017, satisfies the current disability requirement. The service treatment records do not indicate any complaints of difficulty sleeping or irregular sleep. Nor do they mention treatment or diagnosis for sleep apnea or for any other sleep disorder. Nevertheless, the Veteran contends that his sleep apnea had its initial onset during service. To support this claim, he provided a statement from his spouse in May 2017. She wrote that, when her husband was in the Army, she, "observed [him] having trouble while sleeping. He always snores loudly and often stops breathing for a short time followed by catching his breath or choking but usually not waking up." In her hearing testimony, the Veteran's spouse provided similar information and said that she and the Veteran were married in 1978, before he joined the service. Because she was in a position to observe the events about which she testified, the Board finds that this evidence of loud snoring and irregular breathing satisfies the in-service disease, injury, or event requirement of the claim. Thus, the success of the claim depends on whether a causal relationship exists between the Veteran's current sleep apnea and service. See Holton, 557 F.3d at 1366. In May 2017, a nurse practitioner in private practice wrote a letter indicating that, in her opinion, it was likely "that [the Veteran's] sleep apnea was acquired while he was [on] active duty in the military." To support this conclusion, the author mentioned the Veteran's wife's observation that she witnessed "sleep apnea episodes (long pauses in breathing while asleep)" during service. In November 2019, a VA physician prepared a contrary opinion. According to the physician, it was less likely than not that the Veteran's sleep apnea began during service or was otherwise related to an in-service disease, injury, or event. In his opinion, the interval of almost three decades between the Veteran's discharge from the Army and his initial diagnosis of sleep apnea undermined the likelihood of such a connection. November 2019 opinion considered and discussed the statement of the Veteran's spouse and the nurse practitioner's favorable opinion. According to the physician, "snoring and apnea occurs normally without OSA [(obstructive sleep apnea)]. For example, a person can snore and stop breathing 4 times an hour and this would be considered normal and not evidence of and not diagnostic of OSA. Therefore the mere presence of possible snoring and apnea during service dose not establish that OSA was present during service." The physician found the nurse practitioner's opinion to be unpersuasive because, in its analysis, it failed to consider that some snoring and episodes of apnea occur normally without OSA. During the hearing, both the Veteran and his spouse gave more information about the history of his symptoms. When asked whether fatigue ever prevented him from performing his scheduled duties in the Army or caused him to seek medical treatment, the Veteran gave a negative response. To explain why he did not seek medical attention for his fatigue, despite "feeling tired all the time", the Veteran answered, "No, sir. Not those years because according to statistic that sleep apnea only recognized in 1981, so I'm not even aware of that before, so I just go through it, fight for it, and do my job as a soldier." The Veteran's wife testified that the Veteran snored before joining the Army, but his pre-service snoring was less frequent. When she was asked if she had anything else to say before the hearing's conclusion, she said, "With the sleep apnea, sometimes I was worried about how he's sleeping because sometimes just like he stopped breathing. And I try to wake him up and I said are you breathing, honey? What's happening? Because I was just scared . . . sometimes he stop[ped] breathing. And I said, wake up, you know. So, that's all I observed to my husband, Judge, even these days. That's why he didn't go to work because of that because he cannot handle so much heavy things, you know." Having reviewed the evidence, the Board finds that the most persuasive evidence on the question of whether sleep apnea had its onset in service is the November 2019 physician's opinion. Both the May 2017 nurse practitioner's opinion and the November 2019 physician's opinion gave clear explanations for their conclusions. Both authors have qualifications which make them competent to give an opinion on the etiology of sleep apnea, although a physician has more expertise in this regard than a nurse practitioner. More significantly, the November 2019 opinion is persuasive because the author specifically considered the rationale for the May 2017 opinion and explain why it was compatible with his contrary conclusion. The observation of snoring and episodes of irregular by the Veteran's wife, before his discharge from the Army, according to the opinion, did not support a sleep apnea diagnosis. As the physician explained, it is common for someone without obstructive sleep apnea to "stop breathing" four times each hour. Thus, it is likely the Veteran's wife could have observed many of these potential apnea events in service long before he developed his current disability. As the physician further explained, the interval of almost three decades between the Veteran's discharge from the Army in 1988 and his sleep apnea diagnosis in 2017, tends to undermine the contention that OSA had its initial onset in service. See Maxon v. West, 12 Vet. App. 453, 459 (1999); aff'd sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). Before making this unfavorable finding of fact, the Board has considered the hearing testimony of the Veteran and his spouse. Yet the testimony that he never missed his scheduled Army duties on account of fatigue and never sought treatment is consistent with the November 2019 physician's opinion. The Veteran testified he did not seek treatment in service because, when he was in the Army, the existence of sleep apnea was not widely known, and he was personally unaware that such a diagnosis existed until many years later. This is not a persuasive explanation for his not seeking treatment. The fact that a soldier may not know what diagnosis explains his symptoms does not prevent him from complaining about those symptoms, or from seeking treatment from military medical personnel for the potential relief of his symptoms. If the correct diagnosis is not yet part of general medical knowledge which the Veteran suggests may have been true of sleep apnea in the early 1980s then the resulting treatment may not be effective. But from the perspective of the soldier thinking about whether to seek treatment in the first place, there is simply no way to know that. Near the conclusion of the hearing, the Veteran's spouse testified that she remembers waking him up because she observed him not breathing. She did not identify the approximate date of this recollection i.e., whether this is a description of symptoms during service or a description of the symptoms of his current disability. But she followed these remarks with the statement, "That's why he didn't go to work because of that because he cannot handle so much heavy things, you know." As noted, the Veteran testified that, when he was in the Army, he felt fatigued, but he never missed his scheduled work duties because of his sleep symptoms. The most reasonable way to reconcile this apparent contradiction is that the spouse's description of her decision to wake the Veteran up, because he was not breathing and she was afraid, reflects his post-service sleep apnea symptoms, after he began to experience apnea events frequently enough that the resulting fatigue would sometimes interfere with his work. For these reasons, the evidence favors a finding that the Veteran's obstructive sleep apnea did not have its initial onset in service and is not otherwise related to any in-service disease, injury, or event. As the evidence is persuasively against the claim, As there is not an approximate balance of positive and negative evidence and the benefit-of-the-doubt doctrine does not apply, see 38 U.S.C. § 5107(b). Accordingly, the claim for service connection for sleep apnea is denied. REASONS FOR REMAND To help decide the claims for higher ratings for his service-connected disabilities of the fingers of his right hand, the AOJ arranged examinations of the Veteran's fingers in June 2017 and in December 2017. Since the more recent examination, he had surgery on his right hand. The most recent progress notes of his treating nurse practitioner and his October 2021 hearing testimony both indicate that, after his 2018 surgery, the symptoms in the Veteran's right hand first improved, but then worsened. When claimant reports that a disability is worse than when originally rated, VA must provide a new examination. See Olson v. Principi, 3 Vet. App. 480, 482 (1992). At the hearing, the Veteran's representative indicated that, during flare-ups, he experiences further limits on the functional ability of the fingers in his right hand. Although the December 2017 examiner recorded the results of range of motion testing in all his fingers, the examiner did not estimate the likely range of motion during flare-ups or after repeated use over time. Given the Veteran's representations, an adequate examination report would include such estimates. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Finally, the Veteran testified that his fingers will sometimes become, "stuck in a bent position" and his representative suggested, "in some ways, that looks like unfavorable ankylosis, right?" The recent case of Chavis v. McDonough, 34 Vet. App. 1, 11 (2021) suggests that the Veteran could potentially be eligible to receive a higher rating or ratings for his fingers if weakened movement, excess fatigability, incoordination, and pain on movement during flare-ups cause him to experience the "functional equivalent" of ankylosis in certain combinations of fingers. See 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5216-5223. For all these reasons, the Board needs a new VA fingers examination report before it can decide these increased rating claims. This case will be remanded to arrange the necessary examination. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran's VA medical treatment since November 2019. 2. Schedule a VA examination to ascertain the current severity of the Veteran's disability or disabilities of the right hand and fingers. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner who completes the questionnaire should determine the effective range of motion in each of the fingers of the right hand, and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of range of motion test results, in degrees, for both active and passive motion, and in weight bearing and nonweight-bearing. For each finger of the right hand, the examiner must record separate range of motion measurements, in degrees, using each of these testing methods. If the examiner believes that testing using one or more of these methods is unsafe or impractical, he or she should clearly explain the medical reasons for that conclusion. The examiner's report should also describe objective evidence of painful motion, if any, during each test. It is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. If it is impossible to make any of these findings, please provide an explanation. To comply with Sharp, 29 Vet. App. at 33, the examiner should describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the fingers during flares or repetitive use, and if so, the examiner must estimate range of motion in each finger during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the description of reduced range of motion during flares or repetitive use. If the examiner indicates that pain does not cause functional loss with respect to the fingers of the right hand, he or she should thoroughly explain the medical reasons for that opinion. During his or her interview with the Veteran, the examiner should ask the Veteran whether (and, if so, how frequently) symptoms of weakened movement, excess fatigability, incoordination, and/or pain on movement have resulted in the functional equivalent of favorable or unfavorable ankylosis of the index finger, long finger, and/or ring finger. The examiner's report should summarize the Veteran's answer to this question. 3. The AOJ must ensure that the examination report and opinions requested comply with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.