Citation Nr: 1339901 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-20 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and D. C. ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1981 to March 1982, from September 11, 2001 to September 17, 2001, from September 22, 2001 to September 23, 2001, from February 2002 to September 2002, from February 2003 to June 2003 and from October 2007 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado which granted service connection for right knee degenerative joint disease and denied service connection for eczematous dermatitis on the right temple region and service connection for obstructive sleep apnea. The Veteran perfected an appeal for these issues. Subsequently, in a May 2012 written statement, the Veteran withdrew his appeal for the issue of entitlement to an initial increased rating for his service-connected right knee disability. Further, in a January 2013 written statement, the Veteran withdrew his appeal for the issue of entitlement to service connection for eczematous dermatitis on the right temple region. Thus, the only issue remaining for appellate review is the one listed on the title page of this decision. In January 2013, the Veteran and D.C. testified before the undersigned at a videoconference hearing at the RO. A copy of the hearing transcript has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim of service connection for sleep apnea. The Veteran contends that his currently diagnosed sleep apnea was aggravated by his active duty service. Specifically, the Veteran asserts that his sleep apnea, which was diagnosed sometime between 1999 and 2001, increased in severity during his active duty service in Iraq from October 2007 to February 2008. At his hearing, the Veteran testified that during this period of active duty in Iraq, he felt tired all the time and that he had headaches. He stated that he was exposed to burn pits and that his continuous positive airway pressure (CPAP) reading increased while on active duty service. He indicated that he believed that the exposure to the fumes from the burn pits made his sleep apnea worse. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). Here, there was no examination at entry into active duty in 2007. The statute provides that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C.A. § 1111. Thus, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994)) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. at 45; see also Crowe. Indeed, on analogous facts, the Smith Court held that in light of the absence of evidence of an examination made contemporaneous with the Veteran's entry into service, the presumption of sound condition could not apply. Smith v. Shinseki, 24 Vet. App. at 46. Because there was no entrance examination at the time of his entrance into active duty service in 2007, the presumption of soundness does not apply with respect to the claimed condition of sleep apnea. The Veteran does not dispute that he was diagnosed with sleep apnea prior to deploying to Iraq in 2007, and in fact a June 2001 private medical record reflects a diagnosis of obstructive sleep apnea syndrome after a sleep study. Thus, the Board finds that the Veteran's sleep apnea existed prior to the period of active duty service in 2007. The question is whether the Veteran's pre-existing sleep apnea increased in severity during the period of active duty in Iraq in 2007 and 2008. A June 2009 private treatment note from L. K. Gieske, D.O., indicated that the Veteran suffers from sleep apnea and due to the conditions in Iraq, his sleep apnea deteriorated. A VA examination report from February 2010 notes the Veteran's complaints and his current diagnosis of sleep apnea, but provides no medical opinion regarding whether the disability increased in severity during the Veteran's active duty service period in Iraq from 2007 to 2008. An April 2010 letter from L.K. Gieske, D.O., indicates that when the Veteran was reevaluated for sleep apnea after returning from Iraq the condition had deteriorated and he now suffers from ongoing fatigue issues. There are no service treatment records showing complaints of headaches or fatigue for the time period from October 2007 to February 2008; however, 2008 post-deployment questionnaires completed by the Veteran indicate that he experienced headaches while deployed in Iraq in 2007 and 2008. Moreover, the Veteran has credibly testified as to experiencing fatigue during deployment in Iraq in 2007 and 2008. The Board finds that the Veteran is competent to provide information regarding his symptomatology and his statements are also found to be credible on this particular fact. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). Although there is evidence that the Veteran's sleep apnea was worse after returning from Iraq in 2008, it is unclear whether or not the Veteran's pre-existing sleep apnea increased in severity during his period of active duty service from October 2007 to February 2008. Therefore, this matter must be remanded to obtain an appropriate medical opinion. In addition, relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA treatment records dating since February 2010 that are not already associated with the Veteran's claims file. 2. An opinion should be obtained from a medical professional regarding whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran's pre-existing sleep apnea disability permanently increased in severity (as opposed to a temporary flare-up) during his period of active duty service from October 2007 to February 2008. For purposes of responding to this request, the examiner should assume that the Veteran did experience fatigue and headaches in service, as he has credibly alleged, even though there are no service treatment records documenting such complaints. If the examiner finds that there was a permanent increase, the examiner must then determine if such increase was clearly and unmistakably due to the natural progress of the sleep apnea disability. In providing the requested opinion, the examiner must review the Veteran's claims file. The examiner should provide a rationale for all opinions expressed. If the examiner is unable to answer any applicable question, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. After completion of the above development, the Veteran's claim should be readjudicated. If the claim remains denied, he and his representative should be provided with a supplemental statement of the case and be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Veteran 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). _________________________________________________ M. N. HYLAND Acting 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) (2012).