Citation Nr: 1338696 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-00 088A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for traumatic brain injury. 4. Entitlement to an increased rating for hypothyroidism, status post thyroidectomy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from February 1987 to February 1990, February 2003 to August 2003, and February 2005 to May 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received regarding all issues in June 2010, a statement of the case was issued concerning the service connection issues in January 2011, and a substantive appeal was received concerning them in January 2011. The Veteran presented testimony at a Board hearing in March 2013, and a transcript of the hearing is associated with his claims folder. At the hearing, the record was held open for an additional 60 days to permit the Veteran an opportunity to obtain and submit additional evidence. However, this period has expired without additional evidence being submitted to the record. Since a statement of the case was not issued concerning the issue of a disability rating in excess of 10 percent for the Veteran's service-connected hypothyroidism disability following the Veteran's June 2010 notice of disagreement with the RO's May 2010 determination concerning it, remand for such action is required. Manlincon v. West, 12 Vet. App. 238 (1999). The issues of service connection for diabetes mellitus and traumatic brain injury are also addressed in the REMAND portion of the decision below and these issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's sleep apnea disorder at least as likely as not had its onset during active duty service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the claim for service connection for sleep apnea has been granted, no further notification or assistance is necessary, and deciding the appeal is not prejudicial to the Veteran. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). The Veteran seeks service connection for sleep apnea. Complete service treatment records do not appear to be of record. Those which have been furnished were from the Veteran himself, after the RO was unable to locate any at government facilities. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. On questioning during service in July 2003, after the Veteran returned from deployment for Iraqi Freedom, he indicated that during deployment, he developed a feeling of still being tired after sleeping, and that it continued afterward, and that difficulty remembering began during deployment and continued afterward. According to VA records from during VA hospitalization from September to October 2004, the Veteran was overweight and reported severe snoring, occasional awakening with shortness of breath, daytime tiredness, and a thick neck. The assessment was rule-out obstructive sleep apnea. The Veteran was put on the wait list for a sleep study, and weight loss was recommended. In January 2005, the Veteran indicated that he had lost 27 pounds since he got back from Iraq, but that he had gained it all back. He stated that he had some soreness in his neck recently and got easily choked. In February 2007, the Veteran reported a sleep apnea history, with severe snoring, occasional awakening with shortness of breath, daytime tiredness, and a thick neck. In May 2008, the Veteran reported that he was supposed to have had a sleep apnea test, but that he was out of the country (on deployment). Obstructive sleep apnea was diagnosed at the time of a polysomnogram in May 2008. During the Veteran's hearing in March 2013 (the transcript of which is on Virtual VA), it was indicated that he was deployed to Iraq from March to July 2003, and that he had driven his overseas buddies crazy with his snoring. He felt that his sleep apnea began to manifest right after he got back from Iraq. His girlfriend at the time noted that he was snoring a lot, and it was keeping her awake at night. He went to VA complaining of sleep issues because it was keeping him awake and waking him up. A VA physician tried to set him up with a sleep study, but before it occurred, he was shipped to Afghanistan (during his February 2005 to February 2006 period of service). When he came back home, he saw a VA physician who scheduled the sleep study and ordered a CPAP machine for him. Based on the evidence, the Board will find that service connection is warranted for the Veteran's sleep apnea, with reasonable doubt being resolved in his favor as to its onset in service during his Iraqi Freedom deployment. It appears that he was still tired after sleeping and had memory problems both during his Iraqi Freedom deployment and on return from it, and that he had problems with snoring severe enough while in Iraq that it drove his buddies crazy. These were not reported before that time. It also appears that his girlfriend noted that he was snoring a lot right after he returned from Iraq, and that it was keeping her awake. Furthermore, he apparently had been obese while stationed in Iraq, as he lost 27 pounds and then gained it back and was noted to be obese shortly after that period of service ended in August 2003, and sleep apnea was to be ruled out when he was seen by VA from September to October 2004. It was later confirmed with a sleep study in May 2008. Based on the circumstances of this case, the Board concludes that his sleep apnea at least as likely as not had its onset during his February to August 2003 period of service. Accordingly, service connection will be granted for sleep apnea. ORDER Service connection for sleep apnea is warranted. To this extent, the appeal is granted. REMAND The provisions of 38 C.F.R. § 3.159(c)(4)(C) establish a low threshold for satisfying the requirements to trigger the Secretary's duty to assist by providing a medical examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). They also require VA to assist a Veteran with his claim by obtaining relevant identified medical records. The Veteran seeks service connection for traumatic brain injury. Service treatment records are incomplete but they show negative skull X-rays in August 1988 to rule out fracture. In March 1989, the Veteran was punched in the face without the loss of consciousness, but with nausea. X-rays showed right orbital rim and floor fractures. In a February 1990 report of medical history, the Veteran reported that a head injury had occurred at Ft. Polk, Louisiana when he was hit by a piece of equipment, and that he received 3 stitches. In January 2010, he indicated that in 1989, while at Ft. Polk, Louisiana, a breach block from a howitzer 109mm howitzer slipped and hit him in the right posterior parietal area and knocked him out, with an unspecified duration of loss of consciousness but probably for several minutes. He reported chronic headaches that began after that injury, which he reportedly had self-treated in service and since. On examination, the Veteran had normal cognitive screening based on the Montreal Cognitive Assessment. The examiner assessed mild traumatic brain injury in 1989 related to blunt trauma, and indicated that the only residual of his remote mild traumatic brain injury seemed to be headaches. The Veteran's representative has requested an examination with nexus opinion. In light of the fact that there were injuries to the Veteran's head in service, and there is some suggestion of possible residuals in the medical evidence, an examination and opinion is necessary to fully assist the Veteran. During the Veteran's hearing on appeal, the Veteran asserted that his diabetes mellitus, which appears to have been first manifest between July and September 2007 based on VA medical records from those dates, has been aggravated by his service-connected hypothyroidism disability. He stated that since his thyroidectomy, which was in September 2007, his diabetes mellitus has been worse. He indicated that a Dr. Debra told him that his thyroid disorder might be aggravating his diabetes mellitus. Since he is service-connected for a thyroid disorder and diabetes mellitus is currently shown, as reflected by a May 2008 assessment of such, a VA examination is necessary. 38 C.F.R. § 3.159; McLendon. Beforehand, any other available medical records of treatment the Veteran has received for diabetes mellitus or traumatic brain injury, including any reports from a Dr. Debra, should be obtained, to ensure a complete record. The RO denied a rating in excess of 10 percent for the Veteran's hypothyroidism disability in May 2010, and the Veteran filed a notice of disagreement with that determination in June 2010. A statement of the case has not been issued. Under Manlincon v. West, 12 Vet. App. 238 (1999), the Board must remand this issue to the RO for the issuance of a statement of the case. Accordingly, the case is REMANDED for the following actions: 1. Issue the Veteran a statement of the case on the matter of a higher rating than 10 percent for hypothyroidism, status post thyroidectomy. The Veteran should be notified of the necessity to file a timely substantive appeal if he wishes to complete an appeal as to this issue. 2. The RO should ask the Veteran to identify any and all providers of treatment he has received for diabetes mellitus and claimed traumatic brain injury since service, and to provide any authorizations necessary for VA to obtain records of any such private treatment. Of particular interest are records from Dr. Debra and all records of VA treatment. The RO should secure for the record copies of complete pertinent clinical records (i.e., those not already associated with the claims folder) from the sources identified, including any additional records on Virtual VA? 3. After obtaining the above evidence to the extent available, the RO should schedule the Veteran for appropriate examinations to determine the etiology of his diabetes mellitus and of any traumatic brain injury disability. The claims file must be provided to the examiners for review in conjunction with the examinations. After reviewing the file and the remand, the diabetes mellitus examiner should offer an opinion as to the following: a) Is it at least as likely as not (a probability of at least 50 percent or higher) that the Veteran's current diabetes mellitus was manifest in service or within 1 year of discharge, or is otherwise causally related to service? b) Is it at least as likely as not (a probability of at least 50 percent or higher) that the diabetes mellitus is proximately due to or caused by the service-connected hypothyroidism disability? c) Is it at least as likely as not (a probability of at least 50 percent or higher) that such disorder has been aggravated by the service-connected hypothyroidism disability? Detailed reasons for the responses must be furnished. After reviewing the file and the remand, the traumatic brain injury examiner should offer an opinion as to the following: Is it at least as likely as not (a probability of at least 50 percent or higher) that any current traumatic brain injury disability, manifested by headaches or other symptoms, was manifest in service or within 1 year of discharge, or is otherwise causally related to service, to include the Veteran's apparently being hit in +the head by a breach block that slipped from a Howitzer while he was at Ft. Polk, in approximately August 1988, and/or to his being punched in the face in March 1989 with resulting right orbital rim and floor fractures? Detailed reasons for the response must be furnished. 4. Thereafter, readjudicate the Veteran's pending claims in light of the expanded record. If service connection for diabetes mellitus or traumatic brain injury remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs