Citation Nr: 1753786 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-06 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a left varicocele. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for a neck disability. 5. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran is represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1982 to March 1983 and from April 2009 to April 2010, including service in the Southwest Asia theater of operations from June 2009 to March 2010, with additional service in the Colorado National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues of entitlement to service connection for a low back, neck, and left knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to the promulgation of a decision by the Board, the Veteran withdrew his appeal with respect to the issue of entitlement to service connection for a left varicocele. 2. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran's obstructive sleep apnea had its onset during his second period of active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issue of entitlement to service connection for a left varicocele have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for establishing entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Left varicocele An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a), (b)(3). Such withdrawal may be made by the appellant or by his or her authorized representative and, unless done on the record at a hearing, it must be in writing. 38 C.F.R. § 20.204(a). During the January 2017 Board hearing, the Veteran's representative stated on the record that the Veteran wished to withdraw his appeal with respect to the issue of entitlement to service connection for a left varicocele. As such, no allegation of error of fact or law remains before the Board for consideration with respect to that claim. Accordingly, the Board finds that the Veteran has withdrawn his appeal with respect the issue of entitlement to service connection for a left varicocele, and it is dismissed. Obstructive Sleep Apnea Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran asserts that his obstructive sleep apnea had its onset during his second period of active duty. During his January 2017 Board hearing, the Veteran testified that he did not have any sleep issues prior to his deployment from 2009 to 2010. He stated that during his deployment, he did not sleep well, waking four to five times during the night. The Veteran indicated that he was told that it was likely due to adrenaline and that his sleep would slowly return to normal after his deployment; however it never did. He stated that shortly after returning from Iraq, he was diagnosed with obstructive sleep apnea. Upon review of the record, the Board finds that the probative evidence of record demonstrates that it is at least as likely as not that the Veteran's obstructive sleep apnea had its onset during service. As will be discussed below, service treatment records from the Veteran's active duty service have not been obtained. However, a September 2009 private treatment record shows that the Veteran reported feeling very fatigued ever since he returned from Iraq. The treatment provider referred the Veteran for an overnight pulse oximetry test, which revealed five or more desaturations per hour. It was noted that the Veteran appeared to have undiagnosed sleep disordered breathing and that a sleep test may be needed for further determination. In February 2011, the Veteran underwent a VA examination, during which he reported worsening sleep symptoms since his deployment, including nighttime awakenings and significant daytime fatigue. The examiner indicated that the Veteran did not have a formal diagnosis of sleep apnea and that there was "not enough evidence to diagnose an acute or chronic illness." A February 2011 private treatment record shows that one week later, the Veteran underwent a sleep study, which revealed a diagnosis of moderate to severe obstructive sleep apnea. In sum, the record shows that the Veteran sought treatment for symptoms leading to a diagnosis of obstructive sleep apnea less than five months after his discharge from active duty and that he related the onset of his symptoms to his deployment from 2009 to 2010. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for obstructive sleep apnea is warranted. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER The appeal as to the issue of entitlement to service connection for a left varicocele is dismissed. Service connection for obstructive sleep apnea is granted. REMAND As noted above, service treatment records from the Veteran's periods of active duty have not been obtained. The record shows that in March 2012, the AOJ e-mailed the Records Management Center (RMC) requesting the Veteran's service treatment records from both periods of active duty. However, in a response received later that month, the RMC indicated that it did not find any at its facility. In March 2013, the AOJ contacted the National Personnel Records Center (NPRC) and requested records from the Veteran's first period of active duty from January 1982 to March 1983. Later that month, the NPRC indicated that it could not identify records based on the information provided and advised the AOJ to resubmit the request using a different Personnel Information Exchange System (PIES) code. The record does not show that any additional requests for service treatment records were made to the NPRC. In May 2013, the AOJ received the Veteran's service treatment records from his Colorado National Guard service. However, a review of those records reveals no records from either period of active duty. Moreover, those records refer to a March 2009 pre-deployment health assessment and a post-deployment health assessment and reassessment, which have not been associated with the claims file. Therefore, the Board finds that a remand is necessary in order to attempt to obtain the Veteran's service treatment records for both periods of active duty. See 38 C.F.R. § 3.159(c)(2) (2017). Accordingly, the case is REMANDED for the following action: 1. Request through official sources, including the NPRC if appropriate, complete service treatment records for both of the Veteran's periods of active duty from January 1982 to March 1983 and from April 2009 to April 2010. If such records cannot be obtained, a formal finding of whether further attempts to request the records would be futile should be made and the Veteran notified of such. 2. After undertaking the development above and any additional development deemed necessary, the Veteran's claims for service connection for a back, neck, and left knee disabilities should be readjudicated. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given an appropriate period to respond thereto before the case is returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs