Citation Nr: 18156520 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-48 217 DATE: December 10, 2018 ORDER Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his sleep apnea is related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 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 Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 1. Entitlement to service connection for sleep apnea Review of the Veteran’s service treatment records reflects that his entrance examination was normal for the nose, sinuses, lungs and chest. In fact, in an associated report of medical history, the Veteran denied wheezing as well as any lung condition. No separation examination is of record. However, the Board notes that because no defect, infirmity, or disorder was noted with respect to the Veteran’s claimed sleep apnea on entrance, the presumption of soundness attaches. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1). Post-service records show that the Veteran was first diagnosed with sleep apnea just over a year after separation from service. A September 2010 VA treatment note reflects that the Veteran complained of snoring, apneas, gasping and choking. The Veteran was assessed to have probable obstructive sleep apnea, and was referred for a polysomnogram. In October 2010, the Veteran was diagnosed with sleep apnea, and fitted for a CPAP machine. Subsequent VA treatment notes are generally indicative of regular follow-up care for treatment of the Veteran’s sleep apnea, and continuity of symptoms. A private medical examination dated in June 2016 was associated with the claims file. The examination was based on a review of the Veteran’s claims file, as well as personal and lay statements of record. Significantly, the examiner opined that it is more likely than not that the Veteran’s sleep apnea first manifested in service. The examiner explained that although the Veteran did not receive a diagnosis of sleep apnea until approximately 16 months after separation from service, he presented with symptoms suggesting sleep apnea while in the military. The physician further explained that the Veteran’s in-service BMI calculations were indicative of an increased risk of obstructive sleep apnea, and that this condition is frequently undiagnosed for years with an insidious onset and chronicity. Furthermore, the examiner cited the close temporal proximity of the initial diagnosis to separation from service. The Board additionally notes that the examiner made specific citations to medical research in support of her opinion. Also of record is a statement from the Veteran dated in February 2016. The Veteran reports a history of sleep issues which began approximately eight years prior. He stated that his bunk mates made fun of his loud snoring in 2007 while he was deployed in Iraq. In addition to the Veteran’s own lay statement, the Veteran’s spouse submitted testimony in February 2016. She reports having noticed the Veteran’s issues with sleeping, describing such symptoms as snoring and inability to breathe. The Veteran was not afforded a VA examination. Nonetheless, the Board has given consideration to both the positive and negative evidence of record and finds that the overall evidence to be at least in relative equipoise on the question of whether sleep apnea was incurred during service. In so finding, the Board acknowledges the Veteran’s combat service, and over one year of service in Iraq. The Board further finds the Veteran’s lay statements credible and probative. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, the reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2018). Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. 3.303 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. 5103A(d)(2) (2012); 38 C.F.R. 3.159(c)(4)(i) (2018). The McLendon elements are satisfied with regard to the Veteran’s claimed TBI. Regarding the first element, a May 2012 VA treatment note reflects that the Veteran has a current diagnosis of TBI, as well as consistent clinical symptoms. Regarding the second element, the Veteran reported having engaged in multiple combat missions while in service – where his duties were to acquire targets and radio for munitions. The Veteran further reported that during his deployment to Iraq, he encountered multiple IED’s. The Veteran specifically cites to one incident when his vehicle hit an IED, while he was in the back seat, and the driver was killed. The Veteran reported being unable to recall the incident until he was pulled out of the vehicle and on the ground. There is no development of record to verify the aforementioned in-service incident. Regarding the third and fourth elements, there is an indication that the Veteran’s TBI could be related to service, but there is insufficient evidence of record by which the Board can make a decision. Indeed, the Board notes that the Veteran was not afforded a VA examination to examine the nature and etiology of his TBI. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion to determine the nature and etiology of any residuals of TBI found to be present. The Board notes that if, as here, an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C. § 1154(b) do not establish a presumption of service connection, but ease the combat Veteran’s burden of demonstrating the occurrence of an in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). The matter is REMANDED for the following action: 1. Obtain any outstanding VA and private medical records. 2. After the above has been completed, forward the claims file to an appropriately qualified medical provider for a VA medical examination to assess the nature and etiology of the Veteran’s claimed TBI. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests must be accomplished, and all clinical findings reported in detail. The examiner must determine whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran experienced a TBI in service and, if so, must identify all residuals found to be present. In rendering these opinions, the examiner is asked to specifically consider and discuss the Veteran’s lay statements of record, specifically his credible report of having encountered multiple IEDs while deployed to Iraq, as well as records associated with the claims file. The examiner is advised that injuries reported by the Veteran to have occurred during combat are presumed to have occurred, even if not documented in the record. The examiner is also advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner must provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation stating why this is so. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel