Citation Nr: 1237272 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-38 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from March 1987 to October 1995 and from January 2003 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified in August 2009 via videoconference technology before a Veterans Law Judge. A written transcript of this hearing has been added to the claims file. In December 2009 and again in October 2011, these issues were remanded by the Board for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for diabetes mellitus and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Obstructive sleep apnea was first manifest during active duty. CONCLUSION OF LAW Obstructive sleep apnea was incurred during wartime service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claim. The Veteran seeks service connection for obstructive sleep apnea, claimed as having been incurred during active duty. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. On an August 1995 service separation examination, the Veteran was noted to have nasal obstruction of 75 percent on the left and 90 percent on the right. On a concurrent report of medical history, he stated he snored and had difficulty breathing in his sleep. Following service separation, the Veteran sought VA treatment in April 1996 for sleep-related symptoms, including loud snoring, restless sleep, and choking in his sleep. He also reported daytime sleepiness and difficulty breathing out of his nose. Obstructive sleep apnea was diagnosed and he was prescribed a CPAP machine to wear while sleeping. In his written statements to VA and within his hearing testimony, he reported his sleep symptoms began during service, and have persisted since that time. The Board finds credible the Veteran's written and oral assertions that he first began experiencing daytime sleepiness, snoring, and other symptoms of obstructive sleep apnea during service. These assertions were made at service separation, as noted on the August 1995 report of medical history, and are within the Veteran's competency as a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Therefore, the Board finds the Veteran's assertions regarding his sleep-related symptomatology to both competent and credible, as they are consistent with and supported by his prior statements made contemporaneous to his service. Finally, obstructive sleep apnea was diagnosed by a VA examiner upon examination approximately 7 months after service separation. Based on the above, the Board finds it at least as likely as not that the Veteran's obstructive sleep apnea began during service, and service connection for obstructive sleep apnea is therefore granted. ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMAND The Veteran seeks service connection for hypertension and diabetes. Within a July 2000 claim for service connection for these disorders, he stated he was receiving treatment at the Fort Worth VA Outpatient Clinic. An October 2000 request for VA outpatient treatment records was sent by the RO to the cited VA clinic, but the request specified treatment records only from June 5, 2000, to the present. In several places within the record, the Veteran has stated he began treatment at this facility prior to June 2000. For example, he testified before a Decision Review Officer in December 1996 that he began treatment at the Fort Worth VA medical clinic in November 1995, shortly after service separation. In a June 1997 reserve service periodic medical examination, he reported ongoing medical treatment at the "Dallas and Fort Worth VA medical center." Likewise, on VA general medical examination in January 1997, the Veteran reported a history of medical treatment at the Fort Worth VA Outpatient Clinic following service. Additionally, in support of his service connection claim for obstructive sleep apnea, he submitted a VA sleep study dated in April 1996. Finally, within a July 2001 notice of disagreement, the Veteran again stated he was treated for his diabetes and hypertension with a year of his service separation in October 1995. Review of the claims file indicates that while some VA treatment records, such as the April 1996 sleep study, for the period between 1995-2000 have been submitted by the Veteran, there has not been a comprehensive request by VA for pre-June 2000 treatment records. Such records are pertinent to the Veteran's pending service connection claims. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA's duty to assist includes obtaining relevant VA and private medical records when the existence and location of such records has been made known to VA. 38 U.S.C.A. § 5103A(b). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA treatment records not already obtained from the VA outpatient clinic in Dallas/Fort Worth, Texas. This request should include, but not be limited to, any VA treatment records dated between 1995-2000. If no such records are available, that fact must be noted for the record. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs