Citation Nr: 20005035 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 16-08 796 DATE: January 23, 2020 REMANDED Entitlement to service connection for a left wrist disorder is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected cervical spine spondylosis with degenerative changes and intervertebral disc syndrome, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army, Army Reserve, and Virginia Army National Guard. He had a period of active duty from October 1981 to October 1984, and active duty for training (ACDURA) from October 1995 to February 1999. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision. In February 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the claims file. The Veteran’s service connection claim for left wrist laceration status post tendon reconstruction was initially denied by an unappealed, September 2006 rating decision. Consequently, the April 2015 rating decision addressed the question of whether new and material evidence had been received to reopen the claim. However, the record reflects that the evidence associated with the claims file since the September 2006 rating decision includes a NGB Form 22. In the Veteran's initial July 2005 claim, he reported that he entered active service in January 1981 and left active service in February 1999. See July 2005 VA Form 21-526. Service treatment records (STRs) that were of record showed that he injured his left wrist on July 29, 1991. However, a November 2005 National Personnel Records Center (NPRC) response and DD 214s that were associated with the record indicated that the Veteran only had periods of active service from October 1981 to October 1984, and from October 1995 to February 1999. The AOJ consequently denied the claim based on its finding that the Veteran was not on active duty at the time of the injury. However, the newly received NGB Form 22 reflects that the Veteran had service with the Virginia Army National Guard and Army Reserve from December 1984 to February 1999. As this record raises the question of whether the Veteran had active service at the time of the injury, the Board finds that it is pertinent to the Veteran's claim. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). Thus, new and material evidence is not needed to reopen a previously denied claim when relevant personnel records and/or any other relevant service department records are received after a prior final denial. The claim is instead reviewed on a de novo basis. In light of the relevant official service department record received after the September 2006 rating decision, the Veteran's service connection claims for a left wrist disorder will be reviewed on a de novo basis. 1. Entitlement to service connection for a left wrist disorder is remanded. As discussed above, the STRs reflect that the Veteran sustained a left wrist injury in July 1991. Although the record includes a NGB Form 22 indicating that the Veteran had service with the Virginia Army National Guard and in the Reserve of Army from December 1984 to February 1999, it is unclear whether the Veteran had periods of ACDUTRA or INACDUTRA during this period. As the Veteran indicated during the February 2019 Board hearing that he was on active duty at the time of the left wrist injury, the Board finds that the RO should attempt to verify the Veteran's dates of service upon remand. In light of the Veteran’s February 2019 Board hearing testimony that he also had service with the West Virginia Army National Guard at the time of injury, the Board finds that the AOJ should include the West Virginia Army National Guard in its search. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected cervical spine spondylosis with degenerative changes and intervertebral disc syndrome, is remanded. The Veteran has not yet been afforded a VA examination in connection with his service connection claim for a sleep apnea. A July 2015 VA treatment record reflects that he has a current diagnosis of sleep apnea. The Veteran has asserted that his sleep apnea is secondary to opioid medication that was used to treat his cervical spine disability. See February 2016 Statement; February 2019 Board Hearing Transcript. He has also submitted several internet articles indicating that certain pain medications can cause or exacerbate sleep apnea. The Board finds that this evidence meets the low threshold as set forth in McLendon to secure a VA medical examination and opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the Board is prohibited from relying on its own unsubstantiated medical judgment in the resolution of a claim. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left wrist disorder and sleep apnea. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include records dated since November 2015. 2. The AOJ should contact the National Personnel Records Center (NPRC) in St. Louis, Missouri, the Adjutant General of Virginia’s Office, the Adjutant General of West Virginia’s Office, the National Archives and Records Administration (NARA), or any other appropriate entity, and request the Veteran's complete service personnel and treatment records. The efforts to locate these records should only end if the evidence, or information, does not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If appropriate records are deemed to be unavailable, the claims file must be properly documented as to the unavailability of these records. 3. Undertake appropriate action to attempt to verify the Veteran's dates of service in the Army Reserve and Army National Guard, to include the Virginia Army National Guard and West Virginia Army National Guard, beginning in December 1984; including all periods of active duty service, ACDUTRA, and INACDUTRA. To the extent possible, the AOJ must place a memorandum in the file delineating all of the Veteran's periods of duty, to include active duty, ACDUTRA, and INACDUTRA. 4. After the preceding development in paragraphs 1 through 3 is completed, schedule a VA examination to address the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. First, the examiner should indicate whether the Veteran has a diagnosis of sleep apnea. If not, the examiner should address the prior diagnoses of record and explain why such a diagnosis is not warranted. For any identified sleep apnea, the examiner should provide an opinion to the following the questions: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during active service or is otherwise related to active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused or aggravated by the Veteran’s service-connected cervical spine spondylosis with degenerative changes and intervertebral disc syndrome, to include medication used to treat the disability. In providing an opinion, the examiner should address the following: (1) the Veteran’s February 2016 statement and February 2019 Board hearing testimony indicating that his sleep apnea is related to the medication that was used to treat his cervical spine disability, to include opioids; and (2) the articles related to sleep apnea and pain medication that the Veteran submitted on July 15, 2015 and February 14, 2019. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.