Citation Nr: 1604331 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 09-45 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from February 1968 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for sleep apnea. The Veteran testified at an RO hearing in January 2012, and before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in August 2012. Transcripts of both hearings are associated with the claims file. The Board then remanded the Veteran's claim for service connection for sleep apnea for additional development in December 2013. The Veteran's records are contained in both the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board previously remanded the Veteran's claim in December 2013, in part, for a VA examination to assess the etiology of his diagnosed sleep apnea. This examination was performed in January 2014. The examiner reviewed the claims file, obtained a history from the Veteran, and performed a physical examination. Based upon this information, the examiner concluded that the Veteran's diagnosed sleep apnea was less likely than not related to service. In reaching this conclusion, the examiner stated, "There is no evidence found of evaluation or treatment for a sleep disorder during service," and, "There is no evidence found to support the Veteran's history of snoring and apnea during service." However, the Board notes that, aside from an enlistment examination, the Veteran's service treatment records are not associated with the claims file and are not available for review. See December 2007 Memorandum. Therefore, the lack of relevant treatment or findings in service cited by the examiner is not probative in assessing the etiology of sleep apnea. The Board does note, however, that in a March 2014 statement, the Veteran acknowledged never being tested for the condition in service. In addition, VA has acknowledged that the Veteran served in combat. See November 2008 Rating Decision at 2 ("Based on military records we were able to confirm that your unit participated in combat during Vietnam and have conceded your stressor.") When a combat veteran asserts entitlement to service connection for injuries or disease incurred or aggravated in service, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence to establish the occurrence of the claimed disease, injury or event in service. If a veteran engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of injury or disease incurred or aggravated during such service, if the evidence is consistent with the circumstances, conditions, or hardships of his service, even though there is no official record of such incurrence or aggravation. Id. Congress enacted section 1154(b) because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012), citing H.R.Rep. No. 1157, at 3 (1941). In many instances, medical records do not survive combat conditions. Id. This is particularly applicable to the current case, as the Veteran's service treatment records are not available for review. Therefore, for the purposes of this claim, the Veteran's assertion that he experienced snoring in service is accepted as true. However, the above statute and regulation can only be used to provide a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service, not also to link the disability now being claimed to the disease or injury in service. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). See also Reeves, supra. In other words, 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) do not establish entitlement to service connection for a combat veteran; instead, this statute and regulation help him by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). Therefore, the matter must again be remanded for a supplemental opinion from the VA examiner which acknowledges the Veteran's history of snoring in service. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Notably, during his examination, the Veteran reported a history of snoring and "trouble sleeping" since the 1970's. The Board notes that the Veteran is also service-connected for posttraumatic stress disorder (PTSD), and that this rating contemplates chronic sleep impairment. 38 C.F.R. § 4.130. The Veteran's treatment records are replete with findings of such sleep impairment associated with his PTSD. See August 2006 VA Treatment Records (Veteran states that he has nightmares of when he was in the service and that he has problems with sleep); June 2008 VA Treatment Records (Veteran continues to struggle with sleep disturbance, nightmares, flashbacks, depression, anxiety, stress, and other combat PTSD related psychosocial issues); December 2008 VA Treatment Records (noting chronic sleep problems since 1973, diagnosis of PTSD, and improved sleep with medication and therapy). In his August 2009 Notice of Disagreement, the Veteran reported trouble sleeping after a mortar attack and firefight in May 1970. Collectively, this evidence strongly suggests that the "trouble sleeping" reported by the Veteran during his VA examination was sleep impairment associated with PTSD. Moreover, during the August 2012 Board hearing, the Veteran's wife testified that he had snored at night since around 1972. However, while she also reported snoring during a February 2009 sleep consult, she did not report any witnessed apneic episodes. When viewed alongside the evidence discussed above, it appears then that snoring is the only symptom present during service that needs to be addressed by the examiner in the supplemental opinion. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file, including a copy of this remand, to the VA examiner who conducted the January 2014 VA examination for sleep apnea. The examiner must provide a supplemental opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed sleep apnea is etiologically related to service. In forming this supplemental opinion, the examiner is notified that the Veteran's service treatment records are not available for review. The examiner must also accept the Veteran's statements that he snored during and after service as credible. The examiner must provide a complete explanation for her opinion, citing to the medical evidence of record when necessary to support the conclusion reached. If the examiner is unable to render the requested opinion without resorting to speculation, she must so state. However, an explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. If the January 2014 VA examiner is not available, forward the claims file to another appropriate examiner, who must comply with the above instructions. If any examiner determines that an additional examination is necessary to provide the requested opinion, one must be scheduled. 2. After the above has been completed, review the claims file and ensure that the foregoing development action has been completed in full. Specifically, if the requested examination report does not include adequate responses to the questions posed, it must be returned to the VA examiner for corrective action. 3. After undertaking any additional development that may be necessary, readjudicate the issue of entitlement to service connection for sleep apnea. If the benefit sought remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if necessary. 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 2014). _________________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).