Citation Nr: 22040165 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-37 874 DATE: July 13, 2022 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a left ankle disability, diagnosed as deltoid ligament disorder with mild osteoarthritis, is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his sleep apnea began in service. 2. Resolving all doubt in the Veteran's favor, his left ankle disability, diagnosed as deltoid ligament disorder with mild osteoarthritis, is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for left ankle disability, diagnosed as deltoid ligament disorder with mild osteoarthritis, have been met. 38 U.S.C. §§ 1110 , 5103, 5107; 38 C.F.R. §§ 3.102 , 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 2000 to September 2007, including in the Southwest Asia theater of operations during the Persian Gulf War. The record also reflects that the Veteran has prior United States Army Reserve service, to include a period of active duty for training (ACDUTRA) from June 1990 to November 1990. However, the nature and duration of the remainder of service in the US Army Reserves have not been verified. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board via a video teleconference hearing in February 2022 before the undersigned Veteran's Law Judge. A transcript of this hearing has been associated with the records. SERVICE CONNECTION Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a), such as arthritis and diseases of the nervous system, are "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the most persuasive evidence must be 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 obstructive sleep apnea because the Veteran's observable symptoms began while he was serving on active duty and have continued ever since. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran has a current diagnosis of obstructive sleep apnea, based on a 2019 sleep study, as noted in his VA Medical treatment record. See, Capri Records, received 11/18/19. Accordingly, the first element for establishing this service connection has been met. With respect to the second element, the Veteran asserts that he started experiencing sleeping difficulties while in service, following his deployments from Operation Iraq Freedom (OIF) and Operation Enduring Freedom (OEF); that he was exposed to sandstorms and burn pits; that his "buddies" who slept close to him started telling him that he was snoring loudly, and tossing and turning while sleeping. See, August 2019 Correspondence. The Veteran also testified to same during his Board hearing in February 2022. The Board notes that symptoms of sleep apnea are capable of lay observation. 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 his obstructive sleep apnea symptoms began in service and have continued since. Since the Veteran has been consistent with his statements, including during his sworn testimony, the Board finds his statements as to his sleep apnea onset credible and of significant probative value. Accordingly, the Board finds that the second element for establishing service connection has been met. As to the final element of his claim, a nexus, there is no VA examiner's opinion on record addressing this element. However, the Veteran has submitted a private examiner's opinion, which states that the Veteran's sleep apnea can be directly related to his active military service; specifically, that the Veteran's exposure to sandstorms and burn pits "damaged the mucosal lining and diminished the elasticity of his airway to function properly in a supine position" citing to specific medical articles in support that state, in essence, that sleep apnea can arise under these circumstances, and may take years to diagnose, after the fact, as is the case with the Veteran. The Board notes that the RO has conceded the Veteran's exposure to sandstorms and burn pits due to the nature and circumstances of his service, as the record reflects his participation in Operation Iraqi Freedom from March 2004 to October 2004 and from October 2005 to March 2006. The private examiner also noted that the Veteran does not have the comorbidity factors that could attribute his current sleep apnea to other factors unrelated to his active service. Given these facts, the Board has afforded the February 2020 private examiner's opinion high probative value. In sum, in viewing the evidence in the light most favorable to the Veteran, the Board finds that the competent evidence of record is at least in appropriate equipoise as to whether the Veteran's obstructive sleep apnea had its onset in service. Accordingly, the Board finds that service connection for obstructive sleep apnea is warranted in this case, and the Veteran's claim is granted. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to service connection for left ankle disability, to include as secondary to the service-connected disability of lumbar spine degenerative joint disease (claimed as residuals, lower back injury). The Veteran contends that his left ankle disability had its onset during his active-duty service, and that his disability has continued since then, and in the alternative, that his left ankle disability was aggravated by his service-connected low back disability. The Board will focus its analysis on a theory of direct service connection as it results in a full grant of the benefits sought, as explained more fully below. As an initial matter, the Board notes that during a December 2018 VA examination, the Veteran was diagnosed with "thickening and attenuation of deltoid ligament suggestive of degeneration and prior injury" and "mild osteoarthritis of the tibiotalar joint likely contributed to by deltoid ligament pathology." Accordingly, the first element for establishing service connection for his left ankle disability has been met. With regard to the second element, in-service occurrence, the Veteran testified that he experienced repeated trauma to his left ankle doing parachute jumps during his military service, resulting in his current disability. Specifically, while fast roping in 2004, and rappelling a in 2005. See, December 2018 VA Examination. The record also reflects the Veteran's military occupational specialty (MOS) as a parachutist for 1 year and 10 months of his military service. See, DD 214 Certified Original - Certificate of Release or Discharge From Active Duty. As to the RO's contention that the Veteran's left ankle disability pre-existed his February 2000 military enlistment and that the Veteran did not provide objective documentation to show that it worsened because of his military service, the Board disagrees. First, the Board notes that although it was reported in the Veteran's October 2000 physical examination report that he had a prior left ankle fracture from 1997, this was not noted during the Veteran's February 2000 enlistment examination. Without documentation of a defect on the entrance examination, the Veteran is presumed to have been in sound condition when accepted into service. There is a two-prong test for whether the presumption of soundness is rebutted. First, whether there is clear and unmistakable evidence that shows the disability preexisted service. If there is not, then the presumption of soundness is not rebutted, and the analysis ends. If there is evidence that clearly shows preexistence, then, whether there is clear and unmistakable evidence that shows the preexisting disability did not undergo a permanent worsening beyond the normal progression of the disability during active service. If there is not, then the presumption of soundness is not rebutted. Because the Veteran's left ankle disability was not clinically noted upon entry, the Board finds that the presumption of soundness is attached, and as such, VA must show clear and unmistakable evidence of both a preexisting disability and a lack of in-service aggravation to overcome the presumption of soundness. Although the RO specifically cites to a lack of in-service complaints or documented symptoms of left ankle disability as evidence of lack of worsening, the Board finds such basis inadequate to overcome the high burden of presumption of soundness requirement. Consequently, the Board finds that VA has not rebutted the presumption of soundness and as such, this case is subject to a direct service connection claim analysis. With regards to the final element of a nexus, on the theory of secondary service connection, the December 2018 VA examiner found that it was less likely than not that the Veteran's left ankle disability is related to his service-connected low back disability citing to the following as his rationale: After review of the research literature there is no supportive literature that relates the left ankle to the lower back. However from all the wear and tear on the left ankle during active duty the current ankle condition could be at least as likely as not related to trauma from active duty service. However there is no ankle documentation in the STRs. The Board notes that no opinion with regards to aggravation was provided by the examiner. Consequently, the Board finds this VA examination inadequate for its failure to provide a complete and thorough evaluation of the Veteran's left ankle disability to address all possible aspects of the Veteran's claim. On the other hand, the Board finds that the Veteran's own statements regarding the onset of his left ankle disability and subsequent related symptoms are entitled to more probative value, especially given the Veteran's sworn testimony which it also finds highly credibly with regards to the onset, nature of his service and the continuity of his symptoms. Moreover, the Board also finds that the VA examiner's acknowledgment that "[a]ll the wear and tear on the left ankle during active duty the current ankle condition could be at least as likely as not related to trauma from active duty service" constitutes a positive nexus for direct service connection, notwithstanding also citing that there is no documentation in the STRs of left ankle disability symptoms during service. Dalton v. Peake, 21 Vet. App. 23 (2007). There is also no evidence of record attributing his left ankle disability to post-service etiology. Further, proven continuity of symptomatology when dealing with a chronic disease such as arthritis establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." See Walker v. Shinseki, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). As such, in resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in approximate equipoise that his left ankle disability, diagnosed as a deltoid ligament disorder with mild osteoarthritis, had its onset in service, and that his symptomology has continued since then. Therefore, the Board finds that service connection for Veteran's left ankle disability is warranted. 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.