Citation Nr: A25018965 Decision Date: 03/03/25 Archive Date: 03/03/25 DOCKET NO. 240509-438481 DATE: March 3, 2025 ISSUES 1. Entitlement to service connection for obstructive sleep apnea (sleep apnea). 2. Entitlement to service connection for degenerative disc disease, lumbar (lower back disability). ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a lower back disability is granted. FINDINGS OF FACT 1. The evidence is at least in approximate balance that the combat Veteran's sleep apnea is directly caused by or related to active service. 2. The evidence is at least in approximate balance that the combat Veteran's lower back disability is directly caused by or related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have been met or approximated. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for a lower back disability have been met or approximated. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to August 1970. These matters come before the Board of Veterans' Appeals (Board) from a January 2024 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). Following the January 2024 rating decision the Veteran submitted a timely May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and selected the hearing docket. A Board hearing was held in November 2024 with the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The Board may only consider the evidence of record at the time of the January 2024 rating decision, as well as any evidence submitted by the Veteran or representative at the November 2024 Board hearing or within 90 days following the Board hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) after the January 2024 rating decision and prior to the November 2024 Board hearing, or (2) more than 90 days following the November 2024 Board hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to service connection for sleep apnea. The Veteran claims entitlement to service connection for sleep apnea. He specifically contends that his symptoms began during service in Vietnam and have continued since. See January 2024 VA Sleep Apnea examination; November 2024 Board hearing transcript. 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). Lay statements may serve to support a claim for service connection by supporting the occurrence of events subject to lay observation or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377, n4 (stating that lay persons not competent to diagnose cancer). When a Veteran has engaged in combat with the enemy during active-duty service, VA must accept satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat, if such evidence is "consistent with the circumstances, conditions, or hardships of such service". 38 U.S.C. § 1154(b); see Reeves v Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (citing H. R. Rep. No. 1157, at 3 (1941) (noting that Congress enacted the predecessor statute to section 1154(b) because of its concern that combat Veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service, that in many instances, medical records do not survive combat conditions, and that due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries). VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy', as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOGCPREC. No. 12-99, 65 Fed. Reg. 6,256-58 (2000). As an initial matter, in a November 2023 Toxic Exposure Risk Activity (TERA) Memorandum VA conceded the Veteran's exposure to herbicides due to his Vietnam service. Non-deployment related (military occupational specialty (MOS) of rifleman) exposure to include hydrocarbons, lasers, solvents, non-ionizing radiation, as well as copper and lead inhalation was also conceded. And in the January 2024 rating decision the RO found that the Veteran has a current diagnosis of sleep apnea. The Board is bound by this prior favorable finding, which was not clearly and unmistakably erroneous. See 38 C.F.R. §§ 3.104(c). As the Veteran has a current diagnosis of sleep apnea, the first element of direct service connection as discussed above is met. As to the second element, in-service occurrence or aggravation, the Veteran stated that his in-service symptoms included excessive daytime sleepiness, sleep deprivation, loud breathing, and snoring. See January 2024 VA Sleep Apnea examination. In that regard, the Board finds that the Veteran engaged in combat with the enemy during active-duty service as shown by his awards of the Purple Heart, Combat Action Ribbon, Vietnam Service Medal with 4 bronze campaign stars, Republic of Vietnam Meritorious Unit Citation (Gallantry Cross with palm, Civil Actions First Class with palm), and the Republic of Vietnam Campaign Medal. Because the Veteran's statements regarding his sleep-related symptoms are "consistent with the circumstances, conditions, or hardships of such service", the Board also finds that the Veteran's sleep-related disease or injury incurred in combat, during active service, and thus the second element of service connection is met. 38 U.S.C. § 1154(b). Therefore, this appeal primarily hinges on whether a causal relationship exists between the current disability (sleep apnea) and its in-service incurrence (the so-called "nexus"). To that end, in addition to the Veteran's reporting in the January 2024 VA Sleep Apnea examination that his symptoms of excessive daytime sleepiness, sleep deprivation, loud breathing, and snoring began in the 1970s during active service, the Veteran's spouse testified that those symptoms continued after active service when she observed that while sleeping he snored a lot, which progressed to gasping for breath at night, to not breathing at all. In weighing the Veteran's statements the Board notes that the Veteran is competent to assert the presence of sleep-related symptoms subject to lay observation. Furthermore, the Veteran's spouse is competent to report that she observed some if not all of the Veteran's symptoms, particularly the Veteran's snoring, gasping for air, and cessation of breathing while sleeping. The Board also finds that the Veteran and his spouse are credible in this regard, given the many decades of observable symptoms and the length of their relationship, which appears to have preceded onset of the Veteran's sleep-related symptoms. In the January 2024 VA Sleep Apnea examination, after confirming the Veteran's current sleep apnea diagnosis, and noting the Veteran's statements regarding in-service symptoms discussed above, the examiner opined that it was less likely than not that the Veteran's diagnosed sleep apnea was caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. The rationale for this conclusion was that the Veteran's sleep apnea was not shown to have had onset in service or for many years after service and that there was no positive scientific evidence of an association between sleep apnea and exposure to Agent Orange, that is, that Agent Orange actually caused sleep apnea. The Board finds this one and only VA Sleep Apnea examination inadequate for two reasons. First, although the examiner noted consideration of all toxic exposure risk activities of the Veteran, the opinion and rationale for that opinion was exclusively focused on Agent Orange. The examiner failed to consider or discuss all of the Veteran's TERAs, to include hydrocarbons, lasers, solvents, non-ionizing radiation, as well as copper and lead inhalation, as conceded in the prior November 2023 Memorandum noted above. If an examination report does not contain sufficient detail, as is the case here, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes". 38 C.F.R. § 4.2; see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination reports). And second, given that the Veteran stated to the examiner that his symptoms began in the 1970s, during active-service, a direct service connection opinion was warranted. Instead, the examiner simply stated that onset of sleep apnea occurred several years after service. VA must adjudicate all theories of entitlement reasonably raised by the record. See Robinson v. Peake, 21 Vet. App. 545, 552-53 (2008). Alternative theories of entitlement are encompassed within a single claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); see also Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd 421 F. 3d 1346 (Fed. Cir. 2005). Cognizant that there is not an adequate nexus opinion of record as discussed above, the Board finds that the probative evidence that is of record, including the Veteran's lay statements regarding in-service symptoms of excessive daytime sleepiness, sleep deprivation, loud breathing, and snoring during combat operations, as well as the Veteran's spouse's credible statement of observing symptoms of snoring, gasping, and cessation of breathing while sleeping after the Veteran's return from active service, supports a grant of service connection for sleep apnea. See 38 C.F.R. § 3.303(a) (stating that service connection must be considered on the basis of the places, types, and circumstances of the Veteran's service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence). In conclusion, then, the Board finds the probative evidence discussed in detail above, is in at least approximate balance that the Veteran's sleep apnea was incurred during combat active service, continued since service, and is directly related to service. As such, affording the Veteran any benefit of the doubt, entitlement to direct service connection for sleep apnea is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(a); Lynch v. McDonough, 21 F. 4th 776, 781-82 (2021). 2. Entitlement to service connection for a lower back disability. The Veteran claims entitlement to service connection for a lower back disability. He specifically contends that his lower back pain began during service in Vietnam and has continued since. See November 2024 Board hearing transcript. The Board incorporates by reference the legal criteria regarding entitlement to service connection generally summarized in the preceding section. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also as noted in the preceding section, VA has conceded the Veteran's exposure to herbicides from his Vietnam service and the Board has found that the Veteran engaged in combat with the enemy during that same service. Additionally, in the January 2024 rating decision the RO found that the Veteran has a current diagnosis of a lower back disability (degenerative disc disease). The Board is bound by this prior favorable finding, which was not clearly and unmistakably erroneous. See 38 C.F.R. §§ 3.104(c). As the Veteran has a current diagnosis of a lower back disability, the first element of direct service connection as discussed above is met. As to the second element, in-service occurrence or aggravation, the Veteran testified in the November 2024 Board hearing that his in-service symptoms included lower back pain due to the exertions of combat fire-fights, carrying heavy loads, including ammunition, well in excess of 100 pounds, and often sleeping on the ground. Because the Veteran's statements regarding lower back pain are "consistent with the circumstances, conditions, or hardships of such service", the Board also finds that the Veteran's lower back disability was incurred in combat, during active service, and thus the second element of service connection is met. 38 U.S.C. § 1154(b). Therefore, this appeal primarily hinges on whether a causal relationship exists between the current lower back disability and its in-service incurrence (the so-called "nexus"). In the November 2024 Board hearing the Veteran stated that his lower back pain as discussed above continued after service and that he continues to treat the symptoms with medication. Additionally, the Veteran's spouse answered in the affirmative when asked if she noticed the symptoms after the Veteran returned from active service. In weighing the Veteran's testimony, the Board notes that the Veteran is competent to assert the presence of symptoms subject to lay observation, in this case lower back pain and resulting physical limitations. Furthermore, the Veteran's spouse is competent to report that she observed the Veteran's symptoms and medications he used to treat those symptoms. The Board also finds that the Veteran and his spouse are credible in this regard, given the many decades of observable symptoms and the length of their relationship, which appears to have preceded onset of the Veteran's symptoms. The Board notes that the Veteran, despite a current diagnosis of a lower back disability, statements regarding in-service symptoms and continuity of those symptoms after service, and evidence of combat service, all of record at the time of the January 2024 rating decision, was not provided a VA thoracolumbar back examination. Failure to obtain a VA examination in this instance, in contravention of McLendon, was a pre-decisional duty to assist error. Id. Although there is not a nexus opinion of record, adequate or otherwise, as a result of a pre-decisional duty to assist error discussed above, the Board finds that the probative evidence that is of record, including the Veteran's lay statements regarding lower back pain during combat operations as well as the Veteran's and his spouse's credible statements regarding continuity, and medical management of lower back pain, supports a grant of service connection for a lower back disability. See 38 C.F.R. § 3.303(a) (stating that service connection must be considered on the basis of the places, types, and circumstances of the Veteran's service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence). In conclusion, then, the Board finds the probative evidence discussed in detail above, is in at least approximate balance that the Veteran's lower back disability was incurred during combat active service, continued since service, and is directly related to service. As such, affording the Veteran any benefit of the doubt, entitlement to direct service connection for a lower back disability is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(a); Lynch, 21 F. 4th at 781-82. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Matthew Leahy, 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.