Citation Nr: 25004802 Decision Date: 04/09/25 Archive Date: 04/09/25 DOCKET NO. 21-00 803 DATE: April 9, 2025 ORDER Service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for hair loss is remanded. Entitlement to service connection for a cyst is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence of record shows that his obstructive sleep apnea onset during service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from March 2010 to August 2013, including service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2018 and March 2020 rating decisions of a Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In April 2024, the Board denied service connection for sleep apnea, hair loss, cyst, bilateral hearing loss, and scar, denied entitlement to an initial compensable disability rating for erectile dysfunction, denied entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU), and remanded the Veteran's claims for service connection for cervical spine strain, bilateral restless leg syndrome, and entitlement to an initial disability rating in excess of 10 percent for lumbosacral spine strain. Joint Motion for Partial Remand The Veteran appealed the Board's April 2024 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2025, the parties to the appeal (the Veteran and the VA Office of General Counsel) entered into a Joint Motion for Partial Remand (JMPR) in which they agreed that the Board's April 2024 decision regarding these claims should be vacated and remanded, concluding that the Board erred by not providing an adequate statement of reasons or bases as to whether the AOJ's unfulfilled March 2020 request for a VA Gulf War examination resulted in a duty to assist error in regard to these claims. See January 2025 JMPR at 2-3. The JMPR reflects agreement of the parties that the Board's April 2024 remand of claims for service connection for cervical spine strain, bilateral restless leg syndrome, and an initial disability rating higher than 10 percent for lumbosacral spine strain should not be disturbed and that the Veteran's appeal of the Board's denial of service connection for bilateral hearing loss, scar, an initial compensable disability rating for erectile dysfunction, and a TDIU should be dismissed. In a January 2025 Order, the Court granted the JMPR. Pursuant to the JMPR, the Board sent the Veteran notice that he could submit additional evidence and argument in support of the instant claims within 90 days before the Board would proceed with readjudication. See February 2025 Board correspondence. The Veteran replied by submitting additional evidence regarding his sleep apnea claim, and in March 2025 he submitted a formal waiver of the remainder of the 90 day period for submission of evidence and argument. Consistent with the terms of the January 2025 JMPR and the Court's January 2025 Order, the Veteran's claims of entitlement to service-connection for hair loss and a cyst are remanded as set forth below. Service Connection Applicable Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Presumptive service connection provisions under?38?C.F.R. §?3.303(b) based on "chronic" symptoms in service and "continuous" symptoms since service?is an alternative means of linking a claimed disability to service but is only available for?the "chronic diseases" specifically enumerated in 38 C.F.R. § 3.309(a). ?Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).??As sleep apnea is not among the enumerated diseases, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) are?not for application. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or?unpersuasive and?provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7?Vet. App.?36, 39-40 (1994). Competency of evidence differs from weight and credibility. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6?Vet. App. 465, 470 (1994) (a veteran is?competent to report on that of which he or she has personal knowledge). The?Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See?Kahana v. Shinseki, 24?Vet. App.?428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. See Nieves-Rodriguez v. Peake, 22?Vet. App.?295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See?Bloom v. West, 12?Vet. App.?185, 187 (1999). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11?Vet. App.?345, 348 (1998). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776, 781 (2021); Ortiz?v.?Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Obstructive Sleep Apnea The Veteran asserts that his obstructive sleep apnea is related to service. As an initial matter, the Board recognizes that an April 2024 sleep study report associated with the Veteran's claims file in June 2024 reflects diagnosis of obstructive sleep apnea. See April 2024 Diagnostic Polysomnography Interpretation. Service treatment records reflect that in July 2010 the Veteran endorsed breathing issues while asleep, including awakening and gasping for air with no other symptoms. The diagnosis was acute pharyngitis. See July 10, 2012 Medical Record entry. The Veteran's January 2012 post-deployment health assessment reflects that he denied trouble breathing, and he did not check the box for breathing trouble in his March 2012 post-deployment assessment. Service treatment records as well as post-service treatment records are silent for diagnosis or treatment attributed to sleep apnea. During VA outpatient appointments in February, March, and June 2017, it was noted that the Veteran was negative for sleep apnea and sleep disturbances. In December 2019, the Veteran stated that he had not been afforded a sleep study despite multiple requests through his primary care physician and renewed his request for referral for a sleep study. See December 2019 Statement in Support of Claim. VA treatment notes reflect that the Veteran was provided with a VirtuOx home sleep test on August 29, 2020, and in April 2021, he was informed by a VA clinician that the sleep study was negative for sleep apnea. See April 2021 VA Primary Care Secure Messaging. The Veteran was afforded a VA examination in May 2021. The Veteran was examined, and his claims file was reviewed. The examiner noted that she was unable to identify any findings, signs and/or symptoms to support a diagnosis of sleep apnea or any other sleep disorder. The examiner also noted that the Veteran does not require continuous medication or a breathing assistance device for sleep symptoms. In discussing the Veteran's sleep study, the examiner noted that the Veteran did not wish to fax the results of his home sleep test to the examiner or attend another sleep study. See May 2021 VA Sleep Apnea Disability Benefits Questionnaire (DBQ). The VA examiner opined that it is less likely than not that the Veteran has obstructive sleep apnea given that there is no documentation of a polysomnography study of record to support a diagnosis. Subsequent to the Court's January 2025 remand, the Veteran timely submitted a statement in support of his claim for service connection and a February 2025 favorable private medical opinion. In his February 2025 statement, the Veteran described the problems breathing while asleep that had onset several weeks earlier after returning from deployment. He concluded that his having been granted service connection for other disorders, such as migraines, PTSD, tinnitus, and lumbosacral strain support his contention that his prolonged exposure to a toxic environment coupled with in-service stressors, contributed to his sleep apnea. See February 2025 Correspondence. The Veteran is competent to report the circumstances giving rise to the initial observable symptoms, as well as the nature of the symptoms during and after service; however, he has not been shown to be competent to diagnose more complex medical problems, such as obstructive sleep apnea, or to opine as to the etiology of the disorder, which is a medical question. See Kahana, 24 Vet. at 438. Nevertheless, the Veteran submitted the February 2025 medical opinion of nurse practitioner A.P., who noted that she reviewed the Veteran's medical and service records. She opined that the Veteran's obstructive sleep apnea is at least as likely as not directly related to military service. A.P. explained that the Veteran has reported frequently awaking and gasping for air since service, as well as symptoms of daytime sleepiness, and that the July 2012 service treatment record noting that the Veteran awakened gasping for air reflected early symptoms of obstructive sleep apnea rather than pharyngitis diagnosed by the Army clinician. A.P. emphasized that the Veteran's April 2024 obstructive sleep apnea diagnosis based on a private sleep study confirms that the in-service systems and his post-service symptoms are related to obstructive sleep apnea. A.P. noted that the Veteran's service-connected PTSD further exacerbates his obstructive sleep apna. See February 2025 Medical Treatment Record - Non-Government Facility. The February 2025 opinion of private Nurse Practitioner A.P. is competent, credible and probative: It was authored by a licensed clinician who reviewed the Veteran's claims file and was therefore familiar with the Veteran's symptoms, diagnoses, and treatment of his obstructive sleep apnea; the opinion was based on a review of the evidence of record as well as lay statements of the Veteran. The opinion is consistent with the medical evidence of record, and contains a clear conclusion connected by a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Notably, there are no medical opinions or other competent medical evidence of record that weighs against the February 2024 opinion of A.P. Accordingly, the Board finds the February 2025 medical opinion probative, competent and persuasive medical evidence in this case. Based on this body of evidence, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence is persuasively in favor of the claim, and that service connection for obstructive sleep apnea disability is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. The grant of service connection herein on a direct basis renders moot any alternative theory of entitlement. REASONS FOR REMAND Consistent with the terms of the January 2025 JMPR and associated Court Order, the claims of entitlement to service connection for hair loss and service connection for a cyst are remanded to afford the Veteran a VA Gulf War medical examination. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Schedule the Veteran for a VA Gulf War examination. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Elicit from the Veteran and the record the history of all signs and symptoms associated with the claimed hair loss and cyst disabilities during service and since separation from service. (b) Identify all currently diagnosed hair loss and cyst disabilities that have been present at any point since the commencement of the claim period in March 2018. If diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (c) Opine as to whether any diagnosed hair loss and/or cyst disability(s) is consistent with: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology (MUCMI); (3) a diagnosable chronic multi-symptom illness with a partially explained etiology; or (4) a disease with a clear and specific etiology and diagnosis. (d) If the examiner determines that this Veteran's hair loss and/or cyst disability(s) is either a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, then the examiner must provide an opinion as to whether it is at least as likely as not that any hair loss and/or cyst disability(s) is related to the Veteran's active service, to include service in Southwest Asia. **The Veteran is competent to describe observable symptoms during and after service. (Continued on the next page) ? A full and thorough rationale must be provided for all opinions, referencing relevant medical and lay evidence where appropriate. 3. Then, after undertaking any additional development deemed necessary readjudicate the remanded legacy claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.