Citation Nr: 1754059 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 12-12 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a headache disability. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Air Force from March 1983 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The claim of service connection for a headache disability was originally adjudicated as a claim of service connection for migraine headaches. To ensure that any diagnosis of a headache condition is considered, the Board has recharacterized the issue as a claim of service connection for a headache disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that the scope of a claim includes any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). The issue of entitlement to service connection for a headache disability is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has been diagnosed with obstructive sleep apnea. 2. There is competent and credible evidence that the Veteran's obstructive sleep apnea is etiologically related to his active military service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Legal Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2016); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In this case, the medical evidence of record shows that the Veteran has a current diagnosis of sleep apnea. See August 2009 Polysomnogram Report. Therefore, the first requirement for service connection is met. The Board also finds credible evidence that the Veteran displayed symptoms of sleep apnea during service. In a January 2010 statement, fellow servicemember J.C. indicated that the Veteran demonstrated extreme fatigue during service. Specifically, J.C. witnessed the Veteran fall asleep in meetings and nod off during conversations, and on occasion had to drive him places because the Veteran was too fatigued to drive. The Veteran's wife, C.P. also submitted a January 2010 statement suggesting the Veteran displayed symptoms of sleep apnea during service. C.P. wrote that she has been married to the Veteran since 1995, and she had always known him to have sleep problems. She reported that she has witnessed the Veteran fall asleep during TV, nod off constantly during church, and even fall asleep at a traffic light. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that laypersons are competent to report symptoms they observe through their senses). Finally, the record contains competent medical evidence establishing a nexus between the Veteran's sleep apnea and his military service. In a January 2016 statement, private doctor D.P. wrote that he has been treating the Veteran regularly for severe obstructive sleep apnea. Dr. D.P. stated that he had reviewed the Veteran's medical history, including service treatment records (STRs) and concluded that the Veteran had likely suffered from sleep apnea during his active military service. In reaching this conclusion, Dr. D.P. noted two previous in-service sinus surgeries to correct a deviated septum, which he stated is a part of the anatomy that leads to obstructive sleep apnea. In light of this competent medical opinion, and in the total absence of a negative medical opinion from the record, the Board finds that the third and final element of service connection has been met with regard to this claim. Therefore, resolving doubt in favor of the Veteran, the Board finds that his sleep apnea is causally related to service. As such, service connection is warranted. 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. ORDER The Veteran's claim of entitlement to service connection for sleep apnea is granted. REMAND The Board finds that additional development is needed before the Veteran's claim of entitlement to service connection for a headache disability can be decided. The Veteran asserts that he is entitled to service connection for a headache disability that had its onset during active military service. The medical evidence of record suggests that the Veteran has a current headache disability. See, inter alia, Neurology Consultants of Montgomery Report of History and Physical. Additionally, the evidence shows that the Veteran sought treatment for frequent headaches in November 2003, prior to his retirement from active service. See November 5, 2003 Central Alabama Ear, Nose, 7 Throat Associates Treatment Note. The Veteran also reported headaches during an in-service periodic health assessment in 1999, as well as during 42nd Medical Group General Symptoms Evaluations in March 2001 and November 2002. Moreover, the Veteran's wife testified in a January 2010 written statement that the Veteran has been dealing with severe headaches since at least as early as 1997 or 1998. In light of the competent and credible private medical and lay evidence suggesting the Veteran has a headache disability that is etiologically related to active service, the Board finds that the Veteran should be provided a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records not already associated with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed headache disability. The examiner should be provided with the Veteran's complete claims file, including a copy of this remand. The file must be reviewed in its entirety and the report should note that review. The examiner is requested to provide a complete rationale for any opinion. Specifically, for any identified headache disability, the examiner must provide a detailed opinion concerning the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's headache disability was incurred during active service? In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner should assume that the Veteran and his spouse are credible historians and should consider their lay testimony. 3. Then, readjudicate the appeal. If the benefit remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, return the appeal to the Board, as warranted. 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 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs