Citation Nr: 1700131 Decision Date: 01/04/17 Archive Date: 01/13/17 DOCKET NO. 13-30 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD) and generalized anxiety disorder. 2. Entitlement to service connection for a vestibular disorder characterized by dizziness and imbalance (claimed as organ damage in both ears). 3. Entitlement to service connection for a respiratory condition with sinus involvement, nasal congestion, and coughing, including sinusitis and rhinitis. 4. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from November 2007 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a hearing before the undersigned in August 2016. A transcript is of record. The service connection claim for sleep apnea 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 a diagnosis of PTSD and anxiety disorder linked to stressors related to fear of hostile military or terrorist activity during active service in Iraq. 2. The Veteran has a bilateral vestibular disorder caused by his service-connected traumatic brain injury (TBI). 3. The Veteran's sinusitis and rhinitis, with coughing, results from disease or injury incurred in active service, including exposure to burn pits while serving in Balad, Iraq. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD and generalized anxiety disorder are satisfied. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 2. The criteria for entitlement to service connection for a vestibular disorder due to a TBI are satisfied. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). 3. The criteria for entitlement to service connection for sinusitis and rhinitis, with a persistent cough, are satisfied. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a). To grant service connection, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 252 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A. PTSD i. Applicable Law Specific to claims for PTSD, there must be medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (2016), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV). Diagnoses of PTSD are presumed to have been made in accordance with the DSM-IV criteria. Cohen v. Brown, 10 Vet. App. 128, 139-42 (1997), (The DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has amended § 4.125(a) to reflect this update. However, the amendment only applies to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014, and does not apply to appeals already certified to the Board or pending before the Board. 79 Fed. Reg. 45093.) Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, VA regulation sets forth exceptions in which a claimant's lay testimony, alone, may establish the occurrence of the stressor. See 38 C.F.R. § 3.304(f). These include when PTSD is diagnosed during service, stressors related to combat service, stressors related to being a prisoner of war, and stressors related to "fear of hostile military or terrorist activity." Id. With regard to the last exception, "fear of hostile military or terrorist activity," if a stressor claimed by a veteran is related to his "fear of hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. § 3.304(f)(3). VA regulation defines "fear of hostile military or terrorist activity" as meaning that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. ii. Facts VA treatment records dating from November 2009 through December 2016 reflect that VA psychologists, psychiatrists, and other medical professionals such as social workers have diagnosed the Veteran with PTSD "related to combat." A November 2009 initial psychology consultation reflects that the Veteran reported that his base at Balad, Iraq was mortared every day for months and he felt that his life was in danger. He reported anger, sleep difficulty, and problems with concentration and memory that started in Iraq and had continued ever since then. In a March 2010 record, the Veteran reported that he was "not the same person" as he was prior to his deployment to Iraq. He described himself as more irritable, hypervigilant, and easily startled, and also had significant difficulties sleeping. The results of psychological testing for combat-related PTSD were suggestive of a PTSD diagnosis. However, the psychologist who administered the test concluded that while the Veteran was exposed to startling and frightening conditions in Iraq, they did not "constitute the traumatic stressor requirement" necessary to satisfy the criteria for a PTSD diagnosis. The psychologist diagnosed the Veteran with an anxiety disorder NOS (not otherwise specified), with a rule-out diagnosis of generalized anxiety disorder and depressive disorder NOS. A September 2010 military treatment facility (MTF) record from Lackland Air Force Base (AFB) reflects that the Veteran reported symptoms consistent with PTSD. A November 2010 VA treatment record authored by the psychologist who conducted the March 2010 testing states that the Veteran was diagnosed with anxiety disorder, NOS, "with combat-related symptoms" that do not meet the stressor criterion for a PTSD diagnosis. A November 2010 VA mental health evaluation record reflects that the Veteran endorsed hypervigilance and hyperstartle response. He felt afraid to drive at times, as even leaves blowing across the street startled him. He also reported frequent intrusive thoughts with flashbacks related to military events. Driving or walking over gravel could trigger memories. He tried to distance himself from war events. The treating nurse practitioner diagnosed PTSD, combat-related, and anxiety disorder. A January 2011 VA intake record for participation in an outpatient posttraumatic stress program (PTSP) reflects that the Veteran reported a number of stressors during service, including his base at Balad, Iraq being mortared every day, which would result in going into "alarm red," and which was "very scary." The licensed clinical social worker (LCSW) who conducted the intake concluded that the Veteran endorsed symptoms consistent with a PTSD diagnosis. A February 2011 VA treatment record reflects that a neuropsychological consultation, including testing, yielded diagnoses of PTSD and generalized anxiety disorder by a VA psychologist. VA treatment records dated in July 2011 reflect diagnoses of PTSD by VA psychiatrists. In the February 2012 VA PTSD examination report, the examiner opined that the Veteran's symptoms did not satisfy the criteria for a PTSD diagnosis. The examiner noted that the Veteran had an inconsistent history of PTSD diagnoses. He had been diagnosed with PTSD on several occasions but also had not met the criteria for PTSD on other occasions. The examiner stated she had questioned the Veteran about each of the symptoms of PTSD under the DSM-IV criteria, asking him to provide examples about each symptom he endorsed. She explained that often his description of the symptoms he endorsed did not show the frequency or severity of symptoms necessary to satisfy the diagnostic criteria for PTSD under the DSM-IV. A September 2013 VA treatment record reflects a diagnosis of "PTSD, ongoing" by a VA psychiatrist. A May 2015 VA treatment record reflects that a VA clinical psychologist reviewed the Veteran's medical records, and noted the February 2012 VA examination report in which the examiner concluded that the Veteran did not have PTSD. The psychologist stated that the Veteran described "instances" that were not reported during the February 2012 VA examination. The psychologist diagnosed the Veteran with PTSD, stating that his diagnosis was based on the criteria under the DSM-V. A September 2015 VA intake record for the PTSP program (the Veteran did not participate after his earlier intake) reflects a finding that the Veteran provided an inconsistent history, and noted earlier evaluations (discussed above) finding that the Veteran did not have PTSD. The evaluating psychologist found that the Veteran did not endorse experiencing a traumatic event which had been persistently re-experienced, in any form, did not endorse avoidance of stimuli associated with the trauma, or sufficient symptoms of increased arousal. The psychologist concluded that the Veteran's symptoms were more consistent with depression and anxiety. A December 2016 VA treatment record reflects a diagnosis of PTSD by an LCSW based on the Veteran's reported symptoms and military experiences. Written statements dated in October 2010 by the Veteran's wife, father, and a friend or family member (the relationship is not clarified) describe his behavior and personality changes since his deployment to Iraq. iii. Analysis The balance of the evidence supports service connection for PTSD. Although VA psychologists have come to different conclusions over the years as to whether the Veteran has PTSD, a number of VA psychologists and psychiatrists have diagnosed him with PTSD related to combat experiences based on his reported symptoms and their own clinical assessments, including as informed by psychological testing results. The psychologists who concluded that the Veteran did not have PTSD generally found that the Veteran did not endorse sufficient symptoms to satisfy the DSM-IV criteria. However, as noted by a VA psychologist in the May 2015 record, the Veteran endorsed more symptoms or traumatic experiences at that time then he related at the February 2012 VA examination. At the time of the February 2012 examination, the examiner found that the Veteran did not endorse symptoms meeting the frequency or severity requirements necessary to satisfy the diagnostic criteria for PTSD under the DSM-IV. Thus, it may be that the Veteran simply was not as forthcoming about his symptoms or experiences at certain times than others, including at the February 2012 VA examination. Indeed, the VA psychologist who in March 2010 found that the Veteran's symptoms were not sufficient to meet the criteria for PTSD nevertheless stated in the November 2010 record that he had "combat-related symptoms," even if they did not meet the stressor criterion for a PTSD diagnosis. The determination as to whether the Veteran has PTSD cannot be made based on any one-time assessment turning on whether he was able to recount sufficient symptoms, or sufficient frequency or severity of such symptoms, to satisfy the PTSD criteria at a given time. When the record is reviewed as a whole, a picture emerges of frequent diagnoses of PTSD by different VA psychologists and psychiatrists over the years spanning the length of this claim, including based on in-depth evaluation. The fact that some psychologists have interpreted the symptoms differently or differed in their conclusions as to whether the symptoms were sufficient to support the diagnosis does not outweigh the diagnoses of PTSD based on essentially the same symptoms and reported experiences by other VA psychologists and psychiatrists. Accordingly, resolving reasonable doubt in favor of the claim, a current diagnosis of PTSD is established. The in-service stressor requirement is also satisfied. The Veteran has credibly described fear of hostile military activity, including frequent mortar attacks on his base in Balad, Iraq, which is consistent with the circumstances of his service. See 38 C.F.R. § 3.304(f). In this regard, his service personnel records reflect his deployment to Iraq in 2009, including the base at Balad. His statements are sufficient to verify the stressor without further corroboration. See 38 C.F.R. § 3.304(f). Finally, the evidence supports a link between the Veteran's PTSD symptoms and his in-service stressor. The diagnoses of PTSD have been based on the Veteran's reported in-service stressors, including the mortar attacks. The characterization of the PTSD as being "combat-related" further supports a link to his in-service stressors. The phrase "combat-related" was clearly in reference to the Veteran's description of mortar attacks, as he did not report being involved in combat himself. Accordingly, this phrase does not represent a misunderstanding of the nature of his experiences, such as an assumption that he directly engaged in combat. The Veteran has not reported any traumatic experiences apart from during his service in Iraq. The fact that the Veteran sought treatment for and was diagnosed with PTSD within a year of service separation, and that he and various witnesses, including his wife and father, have described his symptoms and behavior changes ever since his deployment, further supports a link between his PTSD symptoms and his in-service stressor. Accordingly, resolving reasonable doubt, service connection for PTSD is established. See 38 C.F.R. §§ 3.102, 3.304(f); The Board is aware that the Veteran had been treated for an episode of depression a number of years prior to service. This fact alone does not weigh against the claim. A March 2007 letter from the doctor who saw the Veteran at that time, M. McCrady, MD, which was written in support of the Veteran's enlistment in the Air Force, states that he treated the Veteran for an episode of situational depression for a brief period seven years earlier, and that the symptoms resolved completely with no recurrence. The Veteran had taken no medication related to this episode since early 2001, according to the letter. A November 2009 VA treatment record also notes that the Veteran had been treated for depression and prescribed psychiatric medication when he was a teenager, but that the depression had cleared when the situation triggering it had resolved. A March 2007 enlistment examination report reflects a finding of an abnormality in the psychiatric category, noting the Veteran's history of anxiety and depression. However, the Veteran did not state and there were no examination findings showing that he had depression, anxiety, or another psychiatric condition at the time of entrance. Rather, as stated in the March 2007 letter by Dr. McCrady, his situational depression had completely resolved years earlier. Accordingly, the Board finds that the Veteran did not enter active service with a pre-existing psychiatric disorder. Moreover, his current PTSD and anxiety diagnoses have not been attributed to that earlier episode of depression, but rather to trauma experienced in service. In sum, service connection for PTSD and generalized anxiety disorder is granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. B. Vestibular Disorder Service connection is established for the Veteran's vestibular disorder, which medical findings show was caused by his service-connected TBI. A February 2010 VA treatment record reflects that the Veteran reported an onset of imbalance in October 2008 after he arrived home from Iraq. Testing conducted in November 2010 at the vestibular clinic at VA yielded results consistent with an abnormal saccular/inferior vestibular nerve function in both ears ("au"). It was noted that this was consistent with vestibular testing results at VA conducted in September 2010, which also indicated saccular and/or inferior vestibular nerve dysfunction. The Veteran was counseled on vestibular rehabilitation therapy. The Veteran's diagnosed vestibular dysfunction is an aspect or manifestation of his service-connected TBI. A November 2010 VA TBI screening was positive, and includes among its diagnostic criteria a positive endorsement of balance problems or dizziness. A December 2016 VA TBI examination reflects that the Veteran's intermittent dizziness was at least as likely as not related to his TBI. Moreover, a December 2016 VA examination report pertaining to ear conditions, including vestibular, reflects a diagnosis of bilateral vestibular dysfunction associated with TBI, with a date of diagnosis of 2008. Accordingly, the evidence shows that the Veteran has vestibular dysfunction resulting from the TBI incurred in active service, for which service connection has already been established. Therefore, service connection for bilateral vestibular dysfunction is granted. See 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366; see also 38 C.F.R. § 3.310 (2016) (providing for service connection on a secondary basis for disability proximately due to or the result of a service-connected disease or injury). C. Respiratory Condition Including Sinusitis, Rhinitis, and Coughing The balance of the evidence supports service connection for sinusitis, rhinitis, and associated coughing. The VA treatment records reflect diagnoses of sinus disease and chronic sinusitis based on computerized tomography (CT) scans conducted in September 2011 and January 2015. The January 2015 VA examination report reflects diagnoses of chronic sinusitis and non-allergic vasomotor rhinitis. An April 2015 VA treatment record also reflects a diagnosis of allergic rhinitis and sinusitis. The January 2015 VA examiner found that the Veteran had a chronic cough more likely than not related to his rhinitis with drainage. The October 2011 VA examiner similarly found that the Veteran's persistent cough could be related to postnasal drip, and that "possible etiologies" were a sinus condition and rhinitis. The Veteran has reported experiencing sinus and congestion problems, as well as coughing, ever since serving in Iraq and being exposed to smoke from a burn pit at Balad Air Force base, as reflected in the January 2015 VA examination report. Such exposure is consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a). A VA fact sheet reflects that large burn pits were used throughout operations in Iraq to dispose of nearly all forms of waste. It is estimated that such pits, some nearly as large as 20 acres, are or have been located at nearly every military forward operating base, including at Balad. Indeed, the burn pit at Balad has received the most attention. Burned products there included, but were not limited to, plastics, metal and aluminum cans, rubber, chemicals such as paints and solvents, petroleum and lubricant products, munitions and other unexploded ordnance, wood waste, medical and human waste, and incomplete combustion by-products. Jet fuel (JP-8) was used as the accelerant. The pits did not effectively burn the volume of waste generated, and smoke from burn pits is known to blow over bases and into living areas. Air sampling conducted by the Department of Defense showed the presence of volatile organic compounds (VOC's) and polycyclic aromatic hydrocarbons (PAH's), twenty-two of which were known to affect the respiratory system. Id.; Cf. also Dan Clare, Home Fires: In Balad, Smoke and Fire, NY TIMES (January 20, 2010), http://opinionator.blogs.nytimes.com/2010/01/20/home-fires-in-balad-smoke-and-fire/. In a December 2014 VA opinion, the examiner opined that the Veteran's cough, nasal congestion, and "sinus/allergy symptoms" were all at least as likely as not related to environmental exposure in Iraq from the burn pit. The examiner explained that these conditions can all be caused by potential respiratory toxins. The Veteran's in-service exposure to environmental toxins from the burn pit, his competent and credible statements asserting that he has had respiratory problems involving his sinuses, nasal congestion, and coughing ever since then, and the positive nexus opinion by the December 2014 VA examiner establish service connection for these conditions. See 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366. The Board notes that prior to the Veteran's active service period, there is a diagnosis of sinusitis in an MTF record from Lackland AFB in June 2007. The Veteran at this time reported nasal blockage and feeling congested in the chest. He was diagnosed with a common cold and sinusitis. This diagnosis was rendered after the March 2007 enlistment examination, which reflects a normal clinical evaluation in the category pertaining to sinuses. The diagnosis of sinusitis was then carried forward (but with no additional findings or complaints pertaining to the sinuses) in subsequent MTF records from Lackland AFB through January 2008. The Veteran's active service commenced in November 2007. A sinus condition was not actually noted on any entrance examination, and the diagnosis of sinusitis in June 2007 was not based on diagnostic imaging. The Board finds that even if the Veteran had a pre-existing sinus condition noted at entry, the balance of the evidence shows that it worsened during service and was aggravated by the burn pit exposure. Accordingly, the presumption of aggravation applies, and is not rebutted by clear and unmistakable evidence to the contrary. See 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2016). In this regard, the evidence discussed above, including the December 2014 VA opinion, shows that the worsening of his sinus condition during or since his deployment to Iraq, where he was exposed to smoke and environmental toxins from a burn pit, went beyond the natural progress of this condition. Accordingly, service connection would still be warranted based on aggravation. Moreover, the bare notation of a diagnosis of sinusitis would not warrant deduction for any degree of disability existing at the time of entrance into active service under the rating schedule. See 38 C.F.R. § 3.322 (2016). In this regard, there is no indication that the rating criteria for a compensable rating or higher were met when the Veteran entered on active duty. See 38 C.F.R. § 4.97, General Rating Formula for Sinusitis, Diagnostic Codes 6510 through 6514 (2016). Accordingly, resolving reasonable doubt in favor of the claim, service connection for sinusitis, rhinitis, and a chronic cough is granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Service connection for a psychiatric disorder, including PTSD and generalized anxiety disorder, is granted. Service connection for a vestibular disorder characterized by dizziness and imbalance as a manifestation of service-connected traumatic brain injury is granted. Service connection for sinusitis, rhinitis, and a persistent cough is granted. REMAND The service connection claim for sleep apnea must be remanded for further development, as explained below. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration. A VA opinion is necessary to determine whether the Veteran's sleep apnea stems from a congenital defect, and, irrespective of its origin, whether it was aggravated by service-connected sinusitis and rhinitis. The December 2014 VA opinion suggests that the Veteran's sleep apnea is the result of a congenital abnormality. Specifically, the examiner stated that obstructive sleep apnea is caused by anatomical narrowing of the upper airway and is less likely than not due to environmental exposure. Similarly, the January 2015 VA examination report reflects a diagnosis of non-traumatic nasal septal deviation to the left. An August 2016 VA treatment record reflects a VA doctor's statement that being exposed to smoke from burn pits is not an established cause of sleep apnea. Congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2014); O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). However, the sole fact that a disorder is congenital or hereditary in origin does not preclude service connection. See O'Bryan, 771 F.3d at 1380; Quirin, 22 Vet. App. at 395; VAOGC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990) (noting that diseases of hereditary origin can be incurred or aggravated in service if their symptomatology did not manifest itself until after entry on duty). Only congenital "defects," as opposed to congenital "diseases," are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries under VA law. O'Bryan, 771 F.3d at 1380; VAOPGCPREC 82-90 (July 1990) (holding that "service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin"). Congenital defects are by definition static in nature. O'Bryan, 771 F.3d at 1380 (observing that a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111); VAOPGCPREC 67-90 ("congenital or developmental defects are normally static conditions which are incapable of improvement or deterioration"). By contrast, congenital diseases are progressive in nature, and as such are capable of improvement or deterioration. O'Bryan, 771 F.3d at 1380 ("[A] congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect," even if it ceases to progress); VAOPGCPREC 67-90 ("A disease . . . even one which is hereditary in origin, is usually capable of improvement or deterioration"). Thus, the litmus test for distinguishing a congenital defect from a congenital disease is whether the disorder in question is capable of changing. See id. If the disorder may improve or deteriorate, then it is not a congenital defect, and consequently is eligible for service connection notwithstanding its congenital or hereditary nature. Id. The Veteran has stated that his sleep apnea began during active service. For example, an August 2016 VA treatment record documents his statement that while serving in Iraq he would wake up gasping for air. He stated that he did not have sleep apnea prior to this time. In an October 2011 statement, the Veteran wrote that during active service, soldiers in his barracks noticed him waking and choking for air. The Veteran's spouse wrote in an October 2010 statement that she noticed his snoring and gasping for air when he returned from Iraq. The earliest diagnosis of sleep apnea, based on a sleep study, is reflected in a June 2010 private treatment record, which is about a year and a half after the Veteran separated from service. In light of the above, even if sleep apnea is not known to be caused by exposure to environmental toxins, there is still the issue of whether the Veteran's sleep apnea first manifested during active service. This issue in turn requires consideration as to whether it stems from a congenital defect, given the findings by the VA examiners. Accordingly, a VA opinion must be obtained as to whether the Veteran's sleep apnea stems from a congenital defect (anatomical narrowing of the upper airway) that is static in nature, meaning it is incapable of improvement or deterioration. If it is not a congenital defect as defined under VA law, then the examiner must opine as to whether it was incurred or aggravated in active service based on the Veteran's statements. Finally, whether or not the Veteran's sleep apnea results from a congenital defect, an opinion must be provided as to whether the sleep apnea was aggravated by the Veteran's service-connected sinusitis and rhinitis. See 38 C.F.R. § 3.310. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical opinion regarding the Veteran's sleep apnea that addresses the following issues. The claims file must be made available to the examiner for review. A. Whether sleep apnea is due to a congenital defect that is static in nature: The examiner is asked to explain whether the Veteran's anatomical narrowing of the upper airway or non-traumatic nasal septal deviation to the left (to which his sleep apnea has been attributed) represents a congenital defect that is static in nature, meaning that it is incapable of improvement or deterioration. See the December 2014 VA opinion and January 2015 VA examination report. B. If not due to a congenital defect (as defined above), whether sleep apnea was incurred or aggravated in active service. If the examiner finds that the Veteran's sleep apnea does not stem from a static congenital defect (as defined above), the examiner must provide an opinion as to whether it was incurred or aggravated during active service. The examiner should consider the Veteran's report of an onset of sleep problems during active service, including waking up gasping for air. C. Whether the sleep apnea was aggravated by the Veteran's sinusitis and rhinitis conditions: Whether or not the Veteran's sleep apnea stems from a congenital defect such as anatomical narrowing of the upper airway, the examiner must opine whether it was aggravated by the Veteran's service-connected sinusitis and rhinitis (i.e. there was an increase in severity of sleep apnea beyond its natural progress due to sinusitis and/or rhinitis). The examiner must provide complete explanations for the conclusions reached. 2. Then, review the opinion to ensure it satisfies the above instructions. In particular, the AOJ must ensure that the examiner correctly defines a congenital defect as one that is incapable of improvement or deterioration, and then adequately explains whether such is the case with regard to the structural origins of his sleep apnea. 3. Finally, after completing any other development that may be indicated, readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs