Citation Nr: 18153238 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 18-40 204 DATE: November 28, 2018 ORDER The petition to reopen the claim of entitlement to service connection for sleep apnea is granted. REMANDED The issue of entitlement to service connection for sleep apnea is remanded. The issue of entitlement to service connection for respiratory disability is remanded. The issue of entitlement to service connection for back disability is remanded. The issue of entitlement to service connection for fungal infection of the bilateral feet is remanded. The issue of entitlement to service connection for acquired psychiatric disability is remanded. FINDINGS OF FACT 1. In an unappealed October 2011 rating decision, the RO denied service connection for sleep apnea. 2. Evidence received since October 2011, in addition to a July 2018 rating decision granting service connection for sinusitis, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for sleep apnea, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2011 rating decision that denied service connection for sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had multiple periods of active service from December 1976 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2018 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The RO has recognized a July 2018 notice of disagreement (NOD) with initial disability ratings assigned in a July 2018 rating decision awarding service connection for sinusitis and hypertension. These issues are not on appeal before the Board. Claim to Reopen Service Connection As noted above, new and material evidence has been included in the claims file since the October 2011 final rating decision that denied service connection for sleep apnea. As such, the Veteran’s petition to reopen the claim is granted. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.302 (2018). REASONS FOR REMAND Additional medical inquiry is warranted into the claims remanded here. The record has not been sufficiently developed to decide whether the disabilities at issue were incurred in service, were aggravated by service, or are secondary to service-connected disability. Evidence of record indicates that the Veteran may have had these disabilities prior to active duty from February to October 2001 (with service in Bosnia between March and September 2001) and prior to active duty from December 2004 to June 2006. But the record appears to be missing service treatment records (STRs) pertaining to these periods of active duty to include entrance and separation reports of medical history and examination. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It is therefore not possible to determine, with the current record, whether any of these disabilities was noted prior to these periods of active duty, or to determine whether active duty aggravated the disorders. Furthermore, the Veteran has indicated a belief that his respiratory disorders are interrelated. As such, the appealed service connection claims for sleep apnea and respiratory disability are intertwined with the July 2018 NOD against the initial rating assigned for sinusitis. Moreover, medical inquiry should be conducted into the issue of whether a secondary service connection finding is warranted for sleep apnea and respiratory disability (claimed as chronic obstructive pulmonary disease (COPD)). The matter is REMANDED for the following action: 1. Include in the claims file any VA medical evidence not currently of file. 2. Schedule examinations to determine the nature and etiology of respiratory, back, foot/skin, and psychiatric disabilities. After reviewing the claims file, and interviewing and examining the Veteran, the respective examiners should answer the questions pertaining to their examination. Sleep apnea and respiratory disability (a). What respiratory disabilities to include sleep apnea has the Veteran been diagnosed with since April 2017? (b). Is it clear and unmistakable (i.e., undebatable) that the Veteran had respiratory disability to include sleep apnea prior to commencement of active duty in December 2004? (c). If it is clear and unmistakable that respiratory disability to include sleep apnea preexisted active duty commencing in December 2004, is it also clear and unmistakable that the disorder WAS NOT aggravated (i.e., permanently worsened) during service between December 2004 and June 2006? In other words, is it clear and unmistakable that, if there was any increase in disability during service, it was due to the natural progress of the disorder? In answering (b) and (c), consider and address the evidence indicating an onset of sleep apnea in 2003. (d). If you find that respiratory disability to include sleep apnea was clearly and unmistakably not aggravated by active duty, is it at least as likely as not (i.e., probability of 50 percent or greater) that such disability otherwise relates to an event, injury, or disease during any period of active service since 1976? In answering (d), consider and discuss the private April 2017 medical report which indicates that COPD/bronchial asthma is due to exposure to contaminated and toxic air generated by burn pits in Bosnia between March and September 2001. (e). If the response to (d) is negative, is it at least as likely as not that respiratory disability to include sleep apnea is due to or caused by service-connected disability (e.g., sinusitis)? (f). If the response to (e) is negative, is it at least as likely as not that respiratory disability to include sleep apnea has been aggravated (i.e., worsened beyond the natural progress) by service-connected disability (e.g., sinusitis)? In answering (e) and (f), consider and discuss the April 2017 private opinion stating that sleep apnea is due to COPD/bronchial asthma. In providing any opinion from (a) to (f), consider any competent and credible lay statements from the Veteran. His lay assertions are particularly important in this matter given that STRs pertaining to service between 1976 and 2006 are missing. Please explain in detail any opinion provided. Back disability (a). What back disability has the Veteran been diagnosed with since April 2017? (b). Is it clear and unmistakable (i.e., undebatable) that the Veteran had back disability prior to commencement of active duty in February 2001? (c). If it is clear and unmistakable that back disability preexisted such service, is it also clear and unmistakable that the disorder WAS NOT aggravated (i.e., permanently worsened) during service between February and October 2001, or during service between December 2004 and June 2006? In other words, is it clear and unmistakable that, if there was any increase in disability during such service, it was due to the natural progress of the disorder? In answering (b) and (c), consider and address the evidence indicating thoracolumbar spine surgery in the late 1990s. (d). If you find that back disability was clearly and unmistakably not aggravated by active duty, is it at least as likely as not (i.e., probability of 50 percent or greater) that such disability otherwise relates to an event, injury, or disease during any period of active service since 1976? In providing any opinion from (a) to (d), consider any competent and credible lay statements from the Veteran. His lay assertions are particularly important in this matter given that STRs pertaining to service between 1976 and 2006 are missing. Please explain in detail any opinion provided. Foot disability (a). What skin disorders of the feet has the Veteran been diagnosed with since April 2017? (b). Is it clear and unmistakable (i.e., undebatable) that the Veteran had skin disability on the feet prior to commencement of active duty in December 2004? (c). If it is clear and unmistakable that such skin disability preexisted commencement of active duty in December 2004, is it also clear and unmistakable that the disorder WAS NOT aggravated (i.e., permanently worsened) during service between December 2004 and June 2006? In other words, is it clear and unmistakable that, if there was any increase in disability during service, it was due to the natural progress of the disorder? (d). If you find that a skin disorder of the feet either did not exist prior to December 2004, or that it was not aggravated during service between December 2004 and June 2006, is it at least as likely as not (i.e., probability of 50 percent or greater) that such disability otherwise relates to an event, injury, or disease during any period of active service since 1976? In answering (d), consider and discuss the private April 2017 medical report which states that fungal infection of the bilateral feet (tinea pedis) relates to “jungle rot” incurred in service. In providing any opinion from (a) to (d), consider any competent and credible lay statements from the Veteran. His lay assertions are particularly important in this matter given that STRs pertaining to service between 1976 and 2006 are missing. Please explain in detail any opinion provided. Psychiatric disability (a). What acquired psychiatric disability has the Veteran been diagnosed with since April 2017? (b). Is it clear and unmistakable (i.e., undebatable) that the Veteran had acquired psychiatric disability prior to commencement of active duty in February 2001, or prior to commencement of active duty in December 2004? (c). If it is clear and unmistakable that acquired psychiatric disability preexisted active duty commencing in either February 2001 and/or December 2004, is it also clear and unmistakable that the disorder WAS NOT aggravated (i.e., permanently worsened) during service between February and October 2001, or between December 2004 and June 2006? In other words, is it clear and unmistakable that, if there was any increase in disability during such service, it was due to the natural progress of the disorder? (d). If you find that an acquired psychiatric disability either did not exist prior to service in February 2001 and/or December 2004, or that it was not aggravated during service between February and October 2001 and between December 2004 and June 2006, is it at least as likely as not (i.e., probability of 50 percent or greater) that such disability otherwise relates to an event, injury, or disease during any period of active service since 1976? In answering (d), consider and discuss the April 2017 private medical report which addresses psychiatric disability. In providing any opinion from (a) to (d), consider any competent and credible lay statements from the Veteran. His lay assertions are particularly important in this matter given that STRs pertaining to service between 1976 and 2006 are missing. Please explain in detail any opinion provided. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel