SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, who served in the United States Marine Corps from February 1969 to September 1970 and later in the Army National Guard, appeals the denial of service connection for obstructive sleep apnea (OSA) and bilateral lower extremity peripheral neuropathy (BLE PN), both claimed as secondary to service-connected conditions. The Board granted service connection for OSA secondary to PTSD. While the initial VA examiner opined that OSA was unrelated to PTSD, the Board found this opinion inadequate for failing to properly address the secondary connection. A subsequent private medical opinion from Dr. M.C. found a causal link between OSA and PTSD, citing studies and concluding the Veteran was a clinical example of this relationship, which the Board found competent and credible. The Board granted OSA secondary to PTSD based on this private opinion. For BLE PN secondary to diabetes mellitus type II (DMII), the Board also granted service connection. An initial VA examiner found BLE PN less likely due to DMII, citing the timing of diagnosis and potential alternative causes like Agent Orange exposure or B12 deficiency. However, the Board found this opinion inadequate for failing to provide a clear opinion on the secondary connection and for being contradictory. A subsequent VA examination also failed to provide an opinion. A private medical opinion from Dr. M.C. found BLE PN more likely than not due to DMII, noting the Veteran's elevated glucose levels predated the formal DMII diagnosis and that treatment for B12 deficiency did not resolve the PN symptoms. The Board found this private opinion competent, credible, and probative, also noting that treatment records diagnosed diabetic neuropathy. Service connection for both OSA secondary to PTSD and BLE PN secondary to DMII was granted.

Rationale

Private medical opinion found causal connection between OSA and PTSD.; VA examination found OSA unrelated to PTSD but was deemed inadequate.; Board found private opinion competent, credible, and probative.

Full Decision Text

Citation Nr: 22000035
Decision Date: 01/03/22	Archive Date: 01/03/22

DOCKET NO. 15-11 718
DATE: January 3, 2022

ORDER

The claim of entitlement to service connection for obstructive sleep apnea (hereinafter OSA), to include as secondary to service-connected disabilities is granted.

The claim of entitlement for service connection for bilateral lower extremity (BLE) peripheral neuropathy (PN), to include as secondary to service-connected disabilities is granted.

FINDINGS OF FACT

1. The Veteran's OSA was incurred in, caused by, or aggravated beyond its natural progression by his service-connected posttraumatic stress disorder (PTSD).

2. The Veteran's BLE PN was incurred in, caused by, or aggravated beyond its natural progression by his service-connected diabetes mellitus type II (DMII).

CONCLUSIONS OF LAW

1. The criteria for establishing entitlement to service connection for OSA, to include as secondary to service-connected disability, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310.

2. The criteria for establishing entitlement to service connection for BLE PN, to include as secondary to service-connected disability, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had honorable active duty service with the United States Marine Corps from February 1969 to September 1970, and periods of active duty with the United States Army National Guard from January 1991 to July 1991, July 1996 to March 1997, with additional periods of Army National Guard service. Among other commendations, the Veteran was awarded the Vietnam Service Medal, Combat Action Ribbon, Republic of Vietnam Cross of Gallantry, and a Southwest Asia Service Medal with a Bronze Service Star.

These matters are before the Board of Veteran's Appeals (Board) on appeal from July 2012 and December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In correspondence dated July 21, 2020, the Veteran requested a hearing before the Board regarding the current claims on appeal. In subsequent correspondence, dated June 2021, the Veteran withdrew his prior request for a hearing. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.702.

In the Veteran's Substantive Appeal (VA Form 9), submitted March 2015, the Veteran limited his appeal to peripheral neuropathy secondary to his service connected DMII of his bilateral lower extremities and OSA secondary to PTSD. The Veteran did not appeal the claim of bilateral upper extremity neuropathy, as such it is not before the Board.

In correspondence dated September 2021, the Veteran's previous attorney of record reported that he left the firm that was representing the Veteran and requested a continuance to allow for additional evidence to be submitted by a different attorney at the same firm. In correspondence dated December 2021 the Veteran's new attorney, with the same firm, waived any additional time to submit evidence and his right to a hearing.

Service Connection

Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110,1131; 38 C.F.R. § 3.303.

In determining whether a disability is to be granted secondary service connection the VA must find 1) that there is a current disability that is not service connected; and 2) that there is at least one service-connected disability; and 3) evidence that the non-service-connected disability is either, a) proximately due to or the result of a service-connected disability; or b) aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995).

When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a).

VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107. Lay testimony is competent to establish the presence of observable symptomatology, where
-connected disability; and 3) evidence that the non-service-connected disability is either, a) proximately due to or the result of a service-connected disability; or b) aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995).

When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a).

VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21. Vet. App. 303 (2007).

The Secretary shall consider all information and lay and medical evidence of record in a case and make appropriate determinations as to competence, credibility, and weight. 38 U.S.C. § 5107; 38 C.F.R. § 3.303; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience, 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.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

When there is an approximate balance between positive and negative evidence, equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits, and when the preponderance of the evidence weighs for the claims of the Veteran the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Entitlement to service connection for OSA, to include as secondary to service-connected disability, is granted.

The Veteran contends he is entitled to service connection for OSA as due to his service-connected PTSD.

The Veteran has a current diagnosis for OSA and is currently service-connected for PTSD. The remaining question before the Board is whether the Veteran's OSA is due to, caused by, or aggravated by his PTSD. The Board finds the preponderance of the evidence is in favor of the Veteran's claim, as such the Board finds in favor of the Veteran as noted below.

The Veteran received a VA examination for his OSA in August 2012. The examiner noted the Veteran's diagnosis of OSA in September 2011 and use of a continuous positive airway pressure (CPAP) machine. The examiner found the Veteran's OSA was not due to his PTSD. The examiner reasoned that, "Although PTSD is a known cause of insomnia and disturbed sleep, there is no demonstratable relation between PTSD and [OSA]." The examiner further noted OSA was caused by upper airway obstruction and was not related to mental health conditions.

The Board finds the VA examination to be inadequate for VA purposes as the examiner neglected to provide an opinion as to whether the Veteran's OSA was caused by or aggravated by his PTSD. Examiners frequently do not provide the proper opinion for secondary service connection by failing to apply the appropriate legal standard to consider the appellant's claim. El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013).

In a November 2021 private medical opinion, Dr. M.C. found that the Veteran's OSA had a causal connection to his PTSD. Dr. M.C. noted his review of the Veteran's records and claims file and conducted an interview with the Veteran. The doctor noted the Veteran's medical treatment history and found the Veteran's OSA was clinically correlated to his diagnosis of PTSD. Dr. M.C. went through multiple cited studies and peer-reviewed literature noting a relationship between OSA and PTSD. The doctor noted these studies and literature
 by failing to apply the appropriate legal standard to consider the appellant's claim. El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013).

In a November 2021 private medical opinion, Dr. M.C. found that the Veteran's OSA had a causal connection to his PTSD. Dr. M.C. noted his review of the Veteran's records and claims file and conducted an interview with the Veteran. The doctor noted the Veteran's medical treatment history and found the Veteran's OSA was clinically correlated to his diagnosis of PTSD. Dr. M.C. went through multiple cited studies and peer-reviewed literature noting a relationship between OSA and PTSD. The doctor noted these studies and literature found that PTSD was shown to increase the likelihood of OSA and OSA was shown to increase the likelihood of PTSD. Dr. M.C. found that the Veteran's OSA was correlated to his PTSD and this relationship was not merely explainable by structural changes, age, or obesity. The doctor found the Veteran was a clinical example of the vast majority of medical literature showing a causality between PTSD onset and OSA development. The doctor further noted that the August 2012 VA examination only considered the etiologic factors of OSA to be structural changes in the neck, age, and obesity, of which Dr. M.C. found was an antiquated and a naïve view of OSA.

The Board finds the private doctor opinion to be extensive, competent, credible and therefore, is afforded significant probative weight.

In this case, the only competent and credible medical evidence of record is in favor of the Veteran's claim. When the preponderance of the evidence weighs for the claim of the Veteran, the claim will be granted on its merits. Therefore, service connection for OSA as secondary to PTSD is granted.

Entitlement for service connection for BLE PN, to include as secondary to service-connected disability is granted.

The Veteran contends his BLE PN is due to, caused by, or aggravated by his service connected DMII.

The Veteran has a current diagnosis of BLE PN and is service-connected for DMII. The remaining question before the Board is whether the Veteran's BLE PN was due to, caused by, or aggravated by his DMII. As indicated below the Board finds in favor of the Veteran's claim for service connection.

At an August 2011 VA examination, the examiner diagnosed BLE PN and found that it was a complication of DMII. Board finds the VA examination is competent, credible, and with significant probative weight.

The Veteran received a VA examination for his BLE PN in August 2012 that noted his diagnosis of PN. The Veteran was noted as reporting tingling paresthesias in the toes of both feet and in his left hand in 2009. The examiner documented the Veteran's diagnosis of DMII in 2011 and his B12 deficiency. The Veteran's PN symptoms and severity was evaluated, along with his muscle strength, and deep tendon reflexes. The Veteran's BLE PN was noted and found to affect both of his sciatic nerves. The examiner determined the Veteran's BLE PN was less likely due to his DMII. The rationale provided noted, 

the Veteran has had peripheral neuropathy symptoms since approximately 2008, he was not diagnosed with diabetes until 2011. Although it is possible for neuropathy symptoms to antedate diagnosis of diabetes, it is not clear in this case that diabetes is the cause of the neuropathy, since the vete[r]an also notes Agent Orange exposure during his Vietnam service, and was also found to have deficiency in vitamin B12 levels, and this is another possible cause of peripheral neuropathy.

The Board finds the VA examination to be inadequate for VA purposes as the examiner fails to opine whether the Veteran's BLE PN was caused by or aggravated by his DMII. Additionally, the examiner indicates they are unable to determine the etiology or origin of the Veteran's BLE PN but does not rule out the Veteran's DMII, as such the Board also finds the examiner's opinion contradictory. When an opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd 1039, 1043-44 (Fed. Cir. 1994).

The Veteran received another VA examination for his PN in February 2015 that noted his bilateral lower extremity diabetic peripheral neuropathy
, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd 1039, 1043-44 (Fed. Cir. 1994).

The Veteran received another VA examination for his PN in February 2015 that noted his bilateral lower extremity diabetic peripheral neuropathy. The Veteran's severity of his BLE PN was noted along with his muscle strength and tendon reflexes. The Veteran's sciatic nerve was noted as being affected. However, the examiner did not provide an opinion as to the Veteran's claim of service connection. As such the VA examination is not adequate for VA purposes. 

In November 2021, the Veteran submitted a private medical opinion from Dr. M.C. that noted review of his record, claims file, and conducted an interview with the Veteran. Dr. M.C. noted the Veteran's history of neuropathic pain complaints in 2004, his impaired fasting glucose from 2007, and diagnosis of PN in 2009, and diagnosis of DMII in 2011. The doctor found the Veteran likely had DMII from at least 2007 well before his diagnosis of a B12 deficiency. Dr. M.C. noted the August 2012 VA examination did not address the Veteran's elevated blood glucose found back to 2006 and found the new diagnosis of B12 issues post-dating his DMII and PN diagnoses. The doctor also indicated that the Veteran's glucose levels from December 2006 met the definition of DMII and found it occurred well before his formal diagnosis of DMII. The doctor also documented the treatment of the Veteran's diagnosed B12 deficiency but after such treatment the Veteran's symptoms of BLE PN continued. The doctor found the Veteran's BLE PN was more likely than not due to his DMII.

The Board finds the November 2021 opinion to be competent, credible, and with significant probative weight.

The Board also notes that the Veteran's treatment records reflect that the Veteran's BLE PN is to his DMII, as the treatment records diagnosed diabetic neuropathy. 

In this case, the most probative medical evidence is in favor of the Veteran's claim. In this regard, the Board reiterates that the 2011 and 2021 opinions, as well as the VA treatment records, are the only competent evidence of record. The Board finds that the preponderance of the evidence is in favor of the Veteran's claim. Therefore, service connection for BLE PN as secondary to DMII is granted.

 

 

Roya Bahrami

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C.A. Teich, 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.