Citation Nr: 18161077 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-13 005 DATE: December 28, 2018 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for residuals of a left foot fracture is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served in the United States Army from July 2007 to July 2011. The issues are on appeal from a September 2014 rating decision. Regarding the TBI claim, the Veteran contends that his TBI is due to a rocket propelled-grenade (RPG) explosion in 2008 while he was deployed in Afghanistan. The Board of Veterans’ Appeals (Board) notes that the Veteran’s remaining service treatment records were certified to be unavailable in a July 2013 VA memorandum. The Board additionally notes that military personnel records showed that the Veteran’s military occupational specialty (MOS) was as a wheeled vehicle mechanic, and his achievements during service included maintenance and installation of gunner restraints on vehicles. In a June 2009 Post-Deployment Health Assessment, the Veteran denied developing any medical problems during deployment, and reported that he had not experienced any blast or explosion, to include a RPG explosion. The reviewing examiners noted that he had no evidence of TBI. VA treatment records from October 2011 showed that the Veteran underwent a TBI screening. The October 2011 test was negative for TBI. The physician noted that the Veteran had never been diagnosed with TBI. The Veteran reported experiencing a vehicular accident and denied experiencing TBI symptoms immediately after the vehicular accident. In June 2013, the Veteran underwent another TBI screening. This test resulted in a positive screen. The Veteran reported that he experienced a RPG explosion and was involved in a vehicular accident. He also reported that he immediately felt dazed and confused after the events, and also had a concussion. Further, his irritability, headaches, and sleep problems began and/or worsened after the incidents; and these symptoms continued until the day of the screening. The Veteran was evaluated for TBI in July 2013 during a polytrauma consultation. He reported to the physician that he worked with the military police as a gunner, and that he was driving his truck in a military police convoy when the convoy was hit by a RPG in 2008. After the explosion, the Veteran lost consciousness very briefly for one second or less, and then continued on his mission. He reported that he also experienced some headaches but he was never evaluated nor did he experience other symptoms. Upon testing, the physician diagnosed the Veteran with mild TBI with brief loss of consciousness and opined that the Veteran had no current symptoms of TBI and appeared to have no significant cognitive issues. In August 2013, the Veteran was afforded a VA examination. The examiner continued the Veteran’s diagnosis of TBI. The Veteran denied having any current complaints of TBI. Noting the July 2013 polytrauma consult from above, the examiner opined that there was no sequalae of mild TBI. However, the examiner failed to provide a nexus opinion for the TBI diagnosis and his service, and thus, the August 2013 opinion is considered inadequate for adjudication purposes. An addendum opinion on etiology must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (providing that when VA undertakes to provide a VA examination or opinion, it must ensure that the examination or opinion is adequate.) Respecting the left foot claim, the Veteran was afforded a VA examination for residuals of a pre-existing left foot fracture in August 2013. The Veteran reported to the examiner that he had fractured both of his feet prior to service in a motocross accident. Although the Veteran denied any specific injury or event during service, he reported to the examiner that he had experienced increased pain during his active duty service, and his left foot fracture has had continued constant aching and increased pain after physical activity since then. The examiner opined that residuals of the Veteran’s left foot fracture, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness because there was no in-service injury that would have worsened the Veteran’s pre-existing foot injury. As the Veteran’s service treatment records are missing, the examiner’s rationale is inadequate. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. Additionally, the examiner did not consider the Veteran’s MOS duties as a wheeled vehicle mechanic or other necessary physical activities required of service when forming an opinion on any potential aggravation beyond natural progression. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists. Therefore, the Board finds the August 2013 opinion is inadequate for adjudication purposes and the Veteran must be afforded a new examination as to determine the potential aggravation that his service had on his pre-existing left foot fracture. See Id. Regarding the sleep apnea claim, as noted above, the Veteran’s service treatment records are unavailable. Given the missing service treatment records, VA has a heightened duty to assist the Veteran in developing his claim. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Over the course of his claim for service connection, the Veteran has contended that his sleep apnea was due to his active duty service. The Board notes that in a June 2009 Post-Deployment Health Assessment, the Veteran reported no problems sleeping or still feeling tired after sleeping. A VA treatment record from September 2013 showed that he reported waking up while choking or gasping for air, snoring, and awakening with a headache. Results from a June 2014 sleep study provided a mild obstructive sleep apnea diagnosis. The Veteran has not yet been afforded a VA examination for the purpose of determining whether his sleep apnea is related to his military service. The Board finds that the Veteran’s current diagnosis of sleep apnea and his statements concerning an in-service injury or injuries is sufficient to trigger the duty on the part of VA to provide an examination as to this claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates a claim disability may be associated with military service for the purposes of a VA examination). Therefore, the Veteran should be afforded a VA examination so as to determine the nature and etiology of his sleep apnea. On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Canadaigua VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA examination with an appropriate TBI specialist in order to determine whether the Veteran’s claimed TBI is related to his military service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner must specifically state whether the Veteran has any residuals of a TBI. Then, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any current separate and distinct disorders found, to include mild TBI, began in or are otherwise etiologically related to his period of active service, to include any RPG explosion while in Afghanistan. The examiner must consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also and the medical records detailed above such as his June 2009 Post-Deployment Health Assessment, October 2011 TBI screen, June 2013 TBI screen, and July 2013 polytrauma consultation, as well as any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale 3. Ensure that the Veteran is scheduled for a VA examination in order to determine whether his left foot fracture residuals is related to service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner is asked to identify all current disabilities of the left foot related to a left foot fracture. Then, with respect to each such diagnosed disability, the examiner is asked to address whether the disability clearly and unmistakably existed prior to the Veteran’s entry into active service, and, if so, whether the disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of the Veteran’s military service. In answering the above, if the examiner finds either that the left foot disability pre-existed service or was not aggravated by service, the examiner must indicate the specific and unmistakable evidence relied upon in arriving at each of those determinations. If the examiner cannot find clear and unmistakable evidence of both pre-existence and non-aggravation, the examiner must then find that the Veteran’s left foot is presumed sound on entrance into military service. Then, the examiner should opine whether the Veteran’s residuals of a left foot fracture at least as likely as not (50 percent or greater probability) began in or is otherwise related to his miliary service. In addressing the above, the examiner should consider any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Ensure that the Veteran is scheduled for a VA examination in order to determine whether his obstructive sleep apnea related to service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner must opine whether the Veteran’s obstructive sleep apnea at least as likely as not (50 percent or greater probability) began in or is otherwise related to his miliary service. In addressing the above, the examiner should consider any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 5. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran’s claims for service connection for residuals of a TBI, residuals of a left foot fracture, and sleep apnea. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel