Citation Nr: 20021793 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-22 139 DATE: March 27, 2020 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1984 to April 1988 and from February 2003 to September 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held in December 2019 before the undersigned Veterans Law Judge. A transcript has been associated with the record. The record was held open for 90 days to allow for the submission of additional evidence. Upon review, the Board finds that additional development is needed prior to adjudication of the claim. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of sleep apnea during his first period of active service from June 1984 to April 1988. His February 1988 separation examination was normal, and he denied having any medical history of frequent trouble sleeping at that time, as well as in October 1990, April 1996, and March 2001. During a July 2003 post-deployment health assessment, the Veteran reported having difficulty breathing during a deployment to Iraq and Kuwait, and he indicated that he felt tired after sleeping. He also noted environmental exposures, including insect repellent, vehicle exhaust fumes, industrial pollution, sand, and dust. He denied having any exposure to smoke from oil fires or burning trash/human waste. Thereafter, VA treatment records dated in December 2013 indicated that the Veteran had reported that his wife told him he snores and stops breathing in his sleep. It was noted that he needed a sleep study to renew his commercial driver’s license. A diagnostic sleep study in May 2014 revealed severe obstructive sleep apnea. The Veteran was afforded a VA examination in March 2015 in connection with his claim. The examiner opined that his obstructive sleep apnea was less likely than not incurred in or associated with the complaints of feeling tired after sleeping during active service. In rendering the opinion, he noted that there was no evidence of a sleep disorder in the reports of medical examination or reports of medical history during active service and that the Veteran worked as a truck driver after service for years without any sleep issues. He also observed that the Veteran was not diagnosed until 2014 when he was required to undergo a sleep study as a condition of renewing his commercial driver’s license. As there was no evidence that the disorder began in service, the examiner stated that his current diagnosis of obstructive sleep apnea is less likely than not related to military service. During the December 2019 hearing, the Veteran testified that he had symptoms in service, including insomnia, loud snoring, morning headaches, a dry throat, and waking up gasping for air. However, he stated that he did not seek treatment during service because he was unaware of sleep apnea at that time. See also March 2017 statement. The Veteran’s spouse, C.G. (initials used to protect privacy), also testified during the December 2019 hearing and indicated that they began living together in 1989, which would have been after his period of active duty. She stated that she observed symptoms at that time, including snoring and gasping for air. She also reported that the Veteran’s symptoms became worse after his deployment. See also February 2017 lay statement from C.G. The March 2015 VA examiner did not have the opportunity to consider this lay evidence. In addition, the examiner did not address whether any environmental exposures in Iraq and Kuwait in 2003 could have caused the Veteran’s sleep apnea. In this regard, the Veteran has reported having exposure to environmental hazards in service, including from dust and burning human waste in 55-gallon steel drums using JP-8 (jet fuel) as an accelerant. See May 2016 correspondence. He has also submitted December 2019 lay statements from J.M. and C.G. who served with him in Southwest Asia and attested to symptoms in service, including loud snoring and gasping for air, as well as environmental hazards such, as toxic smoke and fumes from oil fires and burn pits. For these reasons, the Board finds that an additional VA medical opinion is needed to determine the nature and etiology of the Veteran’s sleep apnea. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his 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 treatment records which have not yet been associated with the claims file. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine 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, hearing testimony, and lay statements. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran’s sleep apnea manifested in service or is otherwise related to his military service, to include any symptomatology therein and any environmental exposures in Southwest Asia. In rendering this opinion, the examiner should consider the July 2003 post-deployment health assessment documenting complaints of difficulty breathing during deployment and feeling tired after sleeping, as well as the December 2019 lay statements from J.M. and C.G. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,] ”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the opinion to ensure that it is in compliance with this remand. If the opinion is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing these actions, the AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.