Citation Nr: 1807967 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 11-28 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for the residuals of a traumatic brain injury (TBI). 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected temporomandibular joint dysfunction (TMJ) with malocclusion. ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1982 to October 2005, which included service in the Southwest Asia Theater. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2016, the Veteran failed to appear for a Board videoconference hearing. Consequently, his hearing request is withdrawn. 38 C.F.R. § 20.704(e) (2017). In September 2016, the Board remanded this matter for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). The VA will notify the Veteran if further action is required. REMAND I. Service Connection for the Residuals of a TBI The Board remanded this matter in September 2016, in part, in order to afford the Veteran a VA examination to address his service connection claim for a TBI, and one was conducted in February 2017. September 2016 Board Decision; February 2017 Residuals of TBI VA Examination Report. Upon examination, the VA examiner concluded there was no objective evidence of a TBI. To support this conclusion, the VA examiner cited the lack of corroborating evidence of injury or loss of consciousness in service. However, the Board notes the VA examiner's opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A review of his service treatment records (STRs) reveals a head injury in October 1991 where he lost consciousness between 60 to 90 seconds as well as multiple reports of dizziness in service. See October 1991 Chronological Record of Medical Care; July 7, 2004 B.A.C. Hospital Treatment Note; July 27, 2004 B.A.C. Hospital Treatment Note; August 2004 B.A.C. Hospital Treatment Note. Furthermore, the VA examiner failed to reconcile the current findings with the Veteran's November 2009 diagnoses of post-concussion syndrome and concussion with loss of consciousness. See Memphis VA Medical Center Problem List; see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the February 2017 Residuals of TBI VA Examination Report is inadequate to adjudicate this claim, and a remand is necessary to obtain another VA examination. Also, with respect to this claim, the Board notes in May 2015 the RO requested the Veteran's service department records specific to his deployment to Kuwait and Iraq from March 2003 to January 2004. May 2015 Request for Information; cf. DD Form 214 (noted the Veteran served in Kuwait and Iraq from February 2003 to February 2004). In response to this request, the RO was directed to use the Defense Personnel Records Information Retrieval System (DPRIS) website to obtain the necessary information from the official military personnel folders in custody of the Department of Defense. Response to May 2015 Request for Information. A review of the claims file is negative for any subsequent DPRIS request for the same. Thus, a remand is also necessary to obtain this records in accordance with the Board's September 2016 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Service Connection for Sleep Apnea The Board also remanded this appeal in September 2016 to afford the Veteran a VA examination addressing his service connection claim for sleep apnea, and one was conducted in February 2017. September 2016 Board Decision; February 2017 Sleep Apnea VA Examination Report. At that time, he reported his sleep apnea onset at 20 years of age. While the VA examiner confirmed his sleep apnea was first diagnosed in 2010, the VA examiner opined it was less likely than not caused by or otherwise related to his service because of his lay report that it first manifested when he was 20 old, which was more than a year prior to his enlistment. At the time of the Veteran's enlistment examination, no abnormalities were found upon clinical evaluation with the exception of a status post repair laceration of the flexor tendon in the right second toe and a scar. September 1982 Report of Medical Examination; see also September 1982 Report of Medical History (the Veteran denied having or having had frequent trouble sleeping). No pre-existing sleep apnea having been sufficiently noted at the time of his enlistment examination, he is entitled to the presumption of soundness unless it is clearly and unmistakably shown it pre-existed prior to service and was not aggravated in service. 38 C.F.R. § 3.304(b) (2017). Thus, the February 2017 Sleep Apnea VA Examination Report is inadequate because the VA examiner did not apply the correct legal standard nor addressed the issue of aggravation. Moreover, the VA examiner's opinion was based on the Veteran's lay statements alone, which is not competent evidence in that regard. See Jones v. West, 12 Vet. App. 460, 465 (1999). Subsequently, in July 2017, another VA examiner rendered an addendum medical opinion applying the correct legal standard. July 2017 Addendum VA Medical Opinion. This VA examiner clarified the Veteran's sleep apnea clearly and unmistakably existed prior to his service. Further, the VA examiner opined there was clear and unmistakable evidence his sleep apnea was not aggravated beyond its natural progression in service. In support, the VA examiner pointed to the lack of evidence demonstrating increased manifestations attributable to his sleep apnea in service. Despite the correction, the July 2017 Addendum VA Medical Opinion is deficient because it appears this VA examiner also relied on his lay statements alone in concluding his sleep apnea pre-existed service. With respect to the issue of aggravation, the VA examiner concluded a review of the claims file showed no factors suggesting aggravation in service. In doing so, the VA examiner neglected to discuss the Veteran's multiple reports of trouble sleeping in service. See August 2004 B.A.C. Hospital Treatment Note; January 2005 B.A.C. Hospital Treatment Note; March 2005 B.A.C. Hospital Treatment Note; see also Stefl, supra. As another matter, the Board notes in his October 2011 VA Form 9, the Veteran asserted that he had an operation in service to extend his lower jaw in service to open up his airway so he could sleep and breathe better. In November 2005, he was granted service connection for TMJ. Therefore, he has reasonably raised the issue of sleep apnea secondary to his service-connected TMJ. No VA examination has addressed this theory of entitlement to date. As such, a remand is necessary to obtain another VA medical opinion. Accordingly, the case is REMANDED for the following action: 1. Submit a DPRIS request for the Veteran's service department records relevant to his deployment to Kuwait and Iraq between February 2003 and February 2004, to include records pertaining to any exposure to blasts from explosives. 2. Once the first request has been completed, to the extent possible, schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed TBI. After reviewing the complete record, the examiner should: a. Determine whether he has any residuals of a TBI. b. If he does not have any residuals of a TBI, reconcile his November 2009 diagnoses of post-concussion syndrome and concussion with loss of consciousness with the current findings. c. If he does have residuals of a TBI, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or is otherwise related to his service and explain why. d. In rendering an opinion, the examiner should discuss his relevant STRs, to include the October 1991 Chronological Record of Medical Care, which noted he lost consciousness for 60 to 90 seconds following a hit which caused an abrasion to his left cheek and a laceration to his upper lip. e. In rendering an opinion, the examiner should also discuss his relevant lay statements of record, to include his statements during the July 2011 and February 2017 VA examinations as well as the January 2004 Post-Deployment Health Assessment. 3. Obtain an addendum medical opinion from an appropriate medical professional to determine the etiology of the Veteran's sleep apnea. After reviewing the complete record, the examiner should: a. Opine as to whether there is clear and unmistakable (obvious and manifest) evidence his sleep apnea pre-existed his service. The examiner is reminded that his lay statement alone asserting the onset of his sleep apnea at age 20 is insufficient to constitute clear and unmistakable evidence. b. If his sleep apnea clearly and unmistakably existed prior to his service, opine as to whether it clearly and unmistakably was not aggravated in service. c. If his sleep apnea did not clearly and unmistakably exist prior to his service, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or is otherwise related to his service, to include any weight management issues during service, and explain why. d. If his sleep apnea is less likely than not caused by or otherwise related to his service, opine as to whether it is proximately due to or aggravated by his service-connected TMJ and explain why. The examiner is reminded that causation and aggravation are distinct concepts, and each must be addressed when rendering an opinion. e. In rendering an opinion, the examiner should also discuss his relevant STRs, to include the September 1997 Dietitian's Note and any other documentation of his weight management in service. f. In rendering an opinion, the examiner should also discuss his relevant lay statements of record, to include his complaints of problems sleeping in the January 2004 Post-Deployment Health Assessment as well as the August 2004, January 2005, and March 2005 B.A.C. Hospital Treatment Notes. 4. Once each of the above requests has been completed, to the extent possible, readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2017).