Citation Nr: 1336092 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-11 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from February 2009 to January 2010 and had additional periods of National Guard and Reserve service. He appealed to the Board of Veterans' Appeals (Board/BVA) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Also, following the submission and consideration of additional evidence, the RO continued to deny the claim in a May 2011 rating decision. The Veteran since has twice testified at hearings in support of his claim, initially in January 2012 before a local Decision Review Officer (DRO) and again in July 2012 before the undersigned Veterans Law Judge (VLJ) of the Board using videoconferencing technology. Copies of the hearing transcripts have been associated with the claims file for consideration. A portion of the Veteran's records are in the "Virtual VA" system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. VA also is in the process of transitioning to a purportedly better and more efficient electronic medium - the Veterans Benefits Management System (VBMS). This claim, however, requires further development before being decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires having competent and credible evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e., a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In this case, VA treatment records dated in September 2010 show the Veteran underwent a sleep study and, based on the results, received a diagnosis of mild-to-moderate sleep apnea. Therefore, element (1) has been satisfied in that he at least has established he has this alleged condition. The question then becomes whether it started during his military service or is otherwise related or attributable to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). His service treatment records (STRs) do not reflect any specific objective findings or diagnoses related to sleep apnea. An October 2008 health survey shows he denied any sleep-related problems or issues. He then served on active duty from February 2009 to January 2010, however. And, notably, during a December 2009 post-deployment health assessment he indicated that he had problems sleeping and/or still felt tired even after sleeping. VA treatment records from February and March 2010, so shortly after his discharge, reflect complaints of insomnia. He also reported that, during his deployment to Iraq, he had worked different shifts and had trouble sleeping. Subsequent VA records show continued complaints of insomnia in addition to the diagnosis of sleep apnea. He explained in his July 2012 videoconference hearing testimony before the Board that, although there was no diagnosis of sleep apnea during his service, he had the relevant complaints mentioned of difficulty sleeping and even being tired despite having slept. He added that he initially was told by a psychiatrist or psychologist that it was probably just "jet lag", so was misdiagnosed during his service, only to later learn after the sleep study that it was in all likelihood sleep apnea. So this is the reason he dates this condition back to his service. He is competent to report difficulty sleeping, both while in service and during the years since, and the Board finds his lay statements and testimony concerning this also to be credible since consistent with his documented complaints back in December 2009. In light of his since diagnosed sleep apnea, and that evidence of difficulty sleeping during his service, a VA compensation examination and medical nexus opinion are needed to assist in determining whether his sleep apnea incepted during his service. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (Medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service). See, too, Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (when determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability). Accordingly, the claim is REMANDED for the following additional development and consideration: 1. Schedule the Veteran for an examination with an appropriate VA compensation examiner to assess the nature and etiology of his sleep apnea. The claims file, including a copy of this remand, must be forwarded to the examiner for review as part of the examination. Following a review of the claims file and an examination, the VA examiner is asked to indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's sleep apnea, diagnosed in September 2010, was incurred in or is otherwise related to his active military service, which lasted from February 2009 to January 2010. In making this necessary determination, the examiner should address the reports of sleep difficulties in service, as indicated in the December 2009 post-deployment health assessment and March 2010 VA treatment records. In other words, the examiner must comment on whether the Veteran had sleep apnea, even then, although it was not actually diagnosed until later following a comprehensive sleep study. It is most essential the examiner discuss the underlying rationales for all opinions expressed and conclusions reached, citing to supporting evidence in the file if necessary. 2. Review the report of this medical examination to ensure it contains a response to the question posed. If not, take corrective action. 38 C.F.R. § 4.2. 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2012). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).