Citation Nr: 18142632 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-31 280 DATE: October 17, 2018 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1999 to September 2002 and from September 2004 to November 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in October 2013. The Veteran perfected an appeal. See November 2013 Notice of Disagreement (NOD); June 2016 Statement of the Case (SOC); June 2016 VA Form-9. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran seeks service connection for obstructive sleep apnea. He has not been afforded a VA examination for this condition; however, the Board is of the opinion that an examination for a medical opinion is necessary. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his claim. 38 U.S.C. § 5103A (d) (West 2012); 38 C.F.R. § 3.159 (c)(4) (2017). In the instant case, the Veteran has a current diagnosis of moderate obstructive sleep apnea. See March 2012 El Paso Sleep Center Sleep Study. Service connection was denied in the October 2013 rating decision on appeal because service treatment records do not document evidence of sleep apnea, nor any evidence that would suggest a link to the Veteran’s currently diagnosed sleep apnea. Thus, the RO determined that the condition neither occurred in, nor was caused by, service. See October 2013 Rating Decision. In this regard, the Board notes that the Veteran’s service treatment records from his second period of active duty service from September 23, 2004 to November 29, 2005 were determined to be unavailable for review. The Veteran was notified in a Formal Finding of the Unavailability of Federal Records in April 2013. Where, as here, the service records are incomplete, lost, or presumed destroyed through no fault of the claimant, VA has a heightened duty to assist in the development of the case. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran contends that his sleep apnea is the result of exposure to highly toxic chemicals he was exposed to in the course of his duties working at the laundry site at Sinjar. He reported that his duties included burning feces with a chemical called JP-8, which he was responsible for stirring into containers containing feces. The Veteran reported that, as a result, he experienced shortness of breath and has experienced breathing problems, including snoring since that time. See July 2013 Statement in Support of Claim. The Board notes that the Veteran’s military occupational specialty (MOS) for his first period of service (September 1999 to September 2002) was laundry and textile specialist. He underwent a laundry and shower specialist course and his DD-214 form for his second period of service (September 2004 to November 2005) notes a MOS of shower/laundry/clothing. The Veteran was afforded a VA examination for respiratory conditions (other than tuberculosis and sleep apnea) in August 2013. Additionally, in August 2017, a Gulf War examination was performed, which included a respiratory conditions examination, but not an examination for sleep apnea. In a June 2016 SOC, the RO again noted the lack of STR evidence of in-service complaints, treatment, or diagnosis of sleep apnea and further found that although the Veteran had service in Southwest asia, that service connection for sleep apnea could not be established based on his Gulf War service as sleep apnea is neither an undiagnosed nor medically unexplained chronic multisymptom illness. See June 2016 Statement of the Case. Even where a Veteran is not entitled to presumptive service connection under the provisions of 38 C.F.R. § 3.317 (2017) for Persian Gulf Veterans, service connection may nonetheless be established on a direct basis. See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). As the Veteran has never been afforded a VA examination specifically for his sleep apnea, there is no medical opinion which specifically addresses his contention that his sleep apnea resulted from exposure to chemicals in the course of his duties as a laundry and textile specialist. In light of evidence of a diagnosis of sleep apnea; VA’s heightened duty to assist, due to the Veteran’s incomplete service records; and the Veteran's contention that his sleep apnea had its onset in service, with symptoms of snoring and breathing problems; the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran's currently diagnosed obstructive sleep apnea. Prior to obtaining the aforementioned examination, any available outstanding relevant treatment records should be obtained and associated with the file. Accordingly, the matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records relating to his obstructive sleep apnea. The RO/AMC should secure any necessary authorizations. Additionally, all updated VA treatment records should be obtained. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of his currently diagnosed obstructive sleep apnea. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The claims file, to include any new records acquired as a result of the development listed above, must be provided to and reviewed by the examiner. The examination report should note that the claims file was reviewed. The examiner is requested to provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was incurred in, caused by, or etiologically related to service, to include exposure to chemical agents? In responding, the examiner is asked to specifically consider and discuss the Veteran’s lay statements regarding the onset of his symptoms, as well as his contention that he was exposed to chemical agents in the course of his duties as a laundry/textile specialist. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. A discussion of the facts and medical principles involved (particularly any relevant medical science pertaining to any association, or lack thereof, between obstructive sleep apnea and exposure to chemical agents) would be of considerable assistance to the Board. 3. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Arrange for any further development indicated by the results of the development requested above, and then re-adjudicate the claim. If the benefit sought on appeal remains denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Lewis