Citation Nr: 20007982 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-43 989 DATE: January 30, 2020 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for mitral valve replacement is remanded. REASONS FOR REMAND The Veteran had active service from October 1967 to January 1969, February 1975 to December 1987 and December 1992 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board notes that a prior Board decision in May 1999 denied service connection for a sleep disorder, diagnosed as periodic limb movement disorder. The Veteran now seeks service connection for sleep apnea. Although a claim for service connection raised following a prior final denial on the same issue typically requires new and material evidence in order for VA to reconsider the merits of the claim (38 C.F.R. § 3.156), the Federal Circuit has held that a claim based on a new diagnosis is treated as a new claim, obviating the need for new and material evidence. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The current claim of service connection for sleep apnea is based on a new diagnosis and, accordingly, new and material evidence is not necessary in this case. The Veteran contends that he first noticed symptoms of shortness of breath, fatigue, trouble staying awake and left-sided chest pain while in service. Specifically, the Veteran noted that his fatigue and lack of stamina started during his service in Southwest Asia and that it continues. The Veteran also submitted lay statements from a friend and a neighbor noting that the Veteran was observed to have “periods of extreme fatigue” following Desert Storm and to be “listless and tired.” The Veteran’s wife also submitted a statement noting that the Veteran was always napping and always tired after returning from the Persian Gulf. Service treatment records reflect that the Veteran complained of “frequent trouble sleeping” during a March 1994 examination and was seen for chest pain in February 1994. VA treatment records reflect that the Veteran underwent a mitral valve replacement in December 2011 and was diagnosed with sleep apnea in a study conducted in August 2012. To date, VA examinations for sleep apnea and mitral valve replacement have not been conducted. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. See McLendon, 20 Vet. App. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms and events. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here there is competent medical evidence of current sleep apnea and mitral valve disabilities. Moreover, the Veteran has submitted lay evidence of continuity symptomatology suggesting that the conditions may be related to service. Accordingly, the Board finds that VA examinations to determine the etiology of the Veteran’s sleep apnea and mitral valve replacement are warranted. The matters are REMANDED for the following action: 1. Obtain any updated treatment records and associate them with the claims file. 2. Provide a copy of the record and this REMAND to appropriate clinicians to determine the etiology of the Veteran’s sleep apnea and mitral valve replacement. Following review of the record and examination of the Veteran, the examiners should address the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea had its onset in service, or within one year of his separation from service, or is otherwise related to service. Please explain why or why not. (b.) Whether it is at least as likely as not that the Veteran’s mitral valve replacement had its onset in service, within one year of service or is otherwise relate to service. Please explain why or why not The examiners are asked to specifically address the Veteran’s contention that his shortness of breath, chest pains, poor sleep, fatigue and lack of stamina first manifested during active service and whether these symptoms are related to the onset of his sleep apnea and mitral valve replacement, including the Veteran’s service in Southwest Asia. All findings and conclusions should be supported with a complete rationale and set forth in a report reflecting the examiners’ consideration and analysis of the lay and medical evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, Associate 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.