Citation Nr: 21063220 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-12 603 DATE: October 13, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for diabetes mellitus, type II is remanded. REASONS FOR REMAND The Veteran served in the Army National Guard from January 1994 to June 1994 and the Army from October 2001 to March 2002, from March 2002 to August 2002, from October 2002 to July 2003, and from October 2009 to September 2010. He testified at a June 2021 videoconference hearing before the undersigned Veterans Law Judge; a copy of the transcript of that hearing is of record. As discussed during the June 2021 hearing, three issues that were addressed in the Agency of Original Jurisdiction's (AOJ's) January 2018 statement of the case, that is, entitlement to service connection for hypertension as well as peripheral neuropathy of the right and left lower extremity, were not the subject of the Veteran's formal appeal to the Board in a March 2018 VA Form. Accordingly, although those issues were listed as having been certified to the Board for its adjudication, it was not proper to do so, and the Board does not have jurisdiction over them. To that end, the Board notes that these three issues were not discussed during the June 2021 hearing and will not be addressed in the present decision. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks entitlement to service connection for obstructive sleep apnea, which he asserts manifested while he was in service and has continued to the present day. Specifically, he contends that his sleep apnea is attributable to his exposure to hazardous chemicals while stationed at Dugway Proving Ground, Utah, in service. To date, the Veteran has not been afforded a VA examination in support of his claim seeking entitlement to service connection for sleep apnea. He has been diagnosed with obstructive sleep apnea since 2010 per the results from a December 2009 sleep study. A review of the claims file reflects that the Veteran in July 2021 submitted a statement from J.R., a fellow servicemember who attested to the Veteran exhibiting loud snoring and restricted breathing while sleeping. Moreover, during the June 2021 hearing the Veteran related that his wife reported that he exhibited snoring and restricted breathing while sleeping during the time period that he was in and out of service. Under these circumstances, the Board finds that remand is warranted in order to afford the Veteran a VA examination to evaluate the nature and likely etiology of his claimed obstructive sleep apnea, to include an evaluation of the likelihood that the condition is attributable to his exposure to hazardous chemical agents while stationed at Dugway Proving Ground in service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board further notes that the AOJ denied the Veteran's claim on the grounds that the sleep apnea was diagnosed prior to the Veteran's entrance to a period of active duty from October 1, 2009 to September 30, 2010. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Mere "temporary or intermittent flare-ups" of a preexisting condition are generally insufficient to show that in-service worsening has occurred. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). However, the degree of in-service worsening need not be so great as to warrant compensation in order for the presumption of aggravation to attach. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Notably, once the presumption of aggravation does attach, the government bears the burden of showing, by clear and unmistakable evidence, "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In light of these guidelines, the Board finds that the AOJ on remand must also secure an opinion that addresses whether the Veteran clearly and unmistakably had preexisting obstructive sleep apnea prior to entering service, and, if so, whether that preexisting sleep apnea was permanently aggravated beyond its natural progression by his service. 2. Entitlement to service connection for diabetes mellitus, type II is remanded. The Veteran seeks entitlement to service connection for diabetes mellitus, type II, which he asserts manifested while he was in service and has continued to the present day. Specifically, he contends that his diabetes mellitus, type II is attributable to his exposure to hazardous chemicals while stationed at Dugway Proving Grounds in service. To date, the Veteran has not been afforded a VA examination in support of his claim seeking entitlement to service connection for diabetes mellitus, type II. He was diagnosed with diabetes mellitus, type II in 2008 and has continued to received treatment for the condition intermittently since then. A review of the record does not reflect that the Veteran was ever diagnosed with diabetes mellitus, type II in service nor did he receive any treatment for the condition in service. However, during the June 2021 hearing he competently detailed how he was almost daily required to retreat from his working and living quarters while stationed at Dugway Proving Ground in service in order to attempt to avoid exposure to hazardous chemical agents as directed by his superiors. This testimony, coupled with his long history of diagnosis of and treatment for diabetes mellitus, type II around the same time period that he was stationed at Dugway Proving Ground satisfies the low threshold necessary to trigger VA's duty to provide him with a VA examination to evaluate the nature and likely etiology of his claimed diabetes mellitus, type II. McLendon, supra. In addition, on remand, as the AOJ also denied the Veteran's diabetes mellitus, type II claim on the same grounds that the condition was diagnosed prior to the Veteran's entrance to a period of active duty service, an opinion responsive to this separate theory of entitlement must also be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to evaluate the nature and likely etiology of his claimed obstructive sleep apnea. The electronic claims file and any other information deemed pertinent must be provided to and reviewed by the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions relating to any symptoms of his obstructive sleep apnea. The examiner is first asked to opine as to whether the obstructive sleep apnea clearly and unmistakably preexisted service, and clearly and unmistakably did NOT worsen beyond natural progression during service. The Board notes that clear and unmistakable is an "onerous" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003). Regardless of the examiner's response to this question, please alternatively consider whether it is it at least as likely as not (at least and approximate balance of positive and negative evidence) that the obstructive sleep apnea had its onset during service or is otherwise related to active service, to include whether the condition is attributable to the Veteran's purported exposure to hazardous chemical agents while stationed at Dugway Proving Ground, Utah. In setting forth this opinion, the examiner should consider and comment upon as necessary the Veteran's testimony during the June 2021 hearing wherein he asserted that he was instructed by his superiors to retreat from his working and living quarters while stationed at Dugway Proving Ground in service in order to attempt to avoid exposure to hazardous chemical agents. The examiner should also consider, and comment upon as necessary, a July 2021 statement from a J.R. in which the Veteran's fellow servicemember attested to his having exhibited signs and symptoms of sleep apnea in service, to include snoring and restricted nighttime breathing. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. The examiner is also asked to assume as true that the Veteran was exposed to the chemicals he purports to have been exposed to while in service. 2. Schedule the Veteran for a VA medical examination to evaluate the nature and likely etiology of his claimed diabetes mellitus, type II. The electronic claims file and any other information deemed pertinent must be provided to and reviewed by the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions relating to any symptoms of his diabetes mellitus, type II. The examiner is first asked to opine as to whether the diabetes mellitus, type II clearly and unmistakably preexisted service, and clearly, and clearly and unmistakably did NOT worsen beyond natural progression during service. Regardless of the examiner's response to this question, please alternatively consider whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the diabetes mellitus, type II had its onset during service or is otherwise related to active service, to include whether the condition is attributable to the Veteran's purported exposure to hazardous chemical agents while stationed at Dugway Proving Ground, Utah. In setting forth this opinion, the examiner should consider and comment upon as necessary the Veteran's testimony during the June 2021 hearing wherein he asserted that he was instructed by his superiors to retreat from his working and living quarters while stationed at Dugway Proving Ground in service in order to attempt to avoid exposure to hazardous chemical agents. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. The examiner is also asked to assume as true that the Veteran was exposed to the chemicals he purports to have been exposed to while in service. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.