Citation Nr: 21065185 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-18 513 DATE: October 25, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for right ankle strain is remanded. Entitlement to service connection for a heart disorder, manifested by chest pains, is remanded. Entitlement to service connection for a temporomandibular joint (TMJ) disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2008 to April 2013. This case comes to the Board of Veterans' Appeals from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. The Veteran requested a hearing before a Veterans Law Judge in Washington, DC in his April 2017 Form 9 Substantive Appeal. This hearing was scheduled for August 2019, but the Veteran did not appear for the hearing. The Veteran's request for a hearing is therefore deemed to be withdrawn. Service Treatment Records The Veteran's claims for service connection were previously denied by the Agency of Original Jurisdiction (AOJ) in large part because there was no documentation of these disorders in service, because the Veteran's service treatment records could not be located. While the AOJ did upload a copy of an e-mail indicating that these service treatment records could not be found, the Board requests that additional efforts be made to obtain these records, and that all efforts to obtain them be fully documented in a formal memorandum. The Veteran's service was fairly recent, ending in April 2013, and if the records cannot be located through a traditional request, attempts should also be made to contact the service treatment facilities associated with the USS Albany, Naval Station Norfolk, and Navy Recruiting Command San Francisco directly to see if they can provide electronic copies of any treatment records. Obstructive Sleep Apnea The Veteran has requested service connection for sleep apnea. In May 2014 the Veteran wrote that he had been experiencing the same sleeping problems as he did while he was in the Navy, including having a hard time falling asleep and staying asleep. He wrote that he has had people on the boat tell him that he snores a lot, and that his wife said that he even skipped breathing while sleeping. The Veteran's wife wrote in May 2014 that her husband did snore extremely loudly and had stopped breathing in his sleep several times. The Veteran attended a VA examination in June 2013. He was found to have a diagnosis of obstructive sleep apnea, and it noted that sleep studies had found that the Veteran had frequent night awakenings and daily fatigue. No nexus opinion was provided by the examiner. The Veteran VA treatment records do include a June 2014 sleep study that found severe obstructive sleep apnea. The Veteran submitted a May 2014 letter from colleague P.J., who wrote that the Veteran had slept in the rack above him on the USS Albany, and that he snored quite often and would sometimes stop breathing in his sleep. There is therefore adequate evidence indicating that the Veteran has had symptoms of loud snoring and breathing disturbance since his service to the present, and this needs to be considered in an adequate VA medical opinion prior to adjudication. This issue is therefore remanded so that a medical opinion can be obtained. Right Ankle Strain The Veteran also claims service connection for a right ankle disability. At the June 2014 examination, the Veteran did have decreased range of motion in his right ankle, but no medical opinion was provided regarding the relationship of the Veteran's right ankle impairment to his service. The Veteran submitted a July 2014 letter from A.P. who wrote that he had been the Veteran's direct supervisor in service, and that while the Veteran was positioned on the roving watch topside, he rolled his ankle. He wrote that the Veteran did report to him and showed him his ankle, that it was swollen and red, and that he was relieved of further watch duty. The Veteran's wife wrote in May 2014 that her husband twisted his ankle and fell during his last month of service, and that it was swollen and bruised for over a week. She wrote that it has remained weak since that time, and that this ankle weakness caused him to later have an avulsion fracture while walking. The Board finds that there is competent evidence indicating that the Veteran did injure his ankle in some way during service, and regardless of whether the Veteran's service treatment records are obtained, this needs to be considered in a VA medical opinion prior to adjudication. Additionally, the Veteran reported at his June 2014 VA examination that he had been treated for a right ankle re-injury at Nason Medical, but it does not appear that any attempt has been made to obtain these records. Heart Disorder The Veteran has requested service connection for chest pains, which he has written are severe and intermittent. The Veteran attended a VA examination in June 2014, where he reported that his chest pain began during service, although he had a negative cardiac workup. The examiner found no current diagnosis of a cardiac condition, but indicated that the results of the Veteran's cardiac work-up in service needed to be reviewed, and that his service treatment records needed to be obtained. Further attempts need to be made to obtain the Veteran's service treatment records, including the cardiac evaluation that the Veteran reported having near the end of his service period. The Veteran's VA treatment records also need to be obtained in order to determine whether he has actually been found to have a heart disorder. The record currently only contains VA treatment records from June 2014 to July 2014. A medical opinion should then be obtained to address whether the Veteran has a heart disability, and whether his reported symptoms which began in service are indicative that the condition began in service, or whether it is related to service. TMJ The Veteran has also submitted a claim for a TMJ disorder. The Veteran attended a VA examination in July 2014. H reported that he had occasional intermittent popping on the right side of his jaw, and that he could be clenching his teeth and that he was told that it could be stress related. He was found to have bruxism and clenching, and that there was occasional stress-induced clenching resulting in myositis. There was no history of trauma, and no loss of the mandible or teeth. There was no loss of range of motion, and no loss of function. Although there is currently no evidence indicating that the Veteran actually has a TMJ disorder, because his service treatment records have not been obtained, the Board also remands this issue, as these records may indicate that the Veteran has had problems with his jaw, or a diagnosis related to his jaw. If these records are found and do indicate any diagnosis or symptoms causing functional impairment, obtain an appropriate VA medical opinion. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to identify the specific facilities where he received medical treatment in the Navy, including the facility where he had a full cardiac work-up performed. 2. Attempt to obtain all of the Veteran's service treatment records from any appropriate agency. If the records cannot be located through a traditional request, attempts should also be made to directly contact the service treatment facilities associated with the USS Albany, Naval Station Norfolk, the Navy Recruiting Commend San Francisco, and any facility identified by the Veteran, to see if they can provide electronic copies of any treatment records. If the service treatment records cannot be located, the AOJ must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Obtain all VA treatment records since July 2014. 4. Request that the Veteran submit a completed release form (VA Form 21-4142) authorizing VA to secure any relevant private treatment records from Nason Medical, as well as any additional private records of treatment for his claimed disorders. The Veteran should be advised that he can also submit those records himself. If the Veteran provides a completed release form, at least two efforts should be made to obtain these records, and the Veteran and his representative should be notified of any unsuccessful efforts. 5. After the above development has been completed, obtain a VA medical opinion on the nature and etiology of the Veteran's obstructive sleep apnea. The examiner is to be provided access to the Veteran's entire claims file, and must specify in the report that these records have been reviewed. The examiner should then discuss: Is it at least as likely as not that the Veteran's sleep apnea began during service or was caused by service? Please discuss the May 2014 lay statements submitted by the Veteran's colleague that he had observed the Veteran snore and stop breathing while sleeping when they were in the service, the Veteran's wife's statement that the Veteran has snored and had disrupted breathing at night ever since service, and the mere 14-month period of time between the Veteran's separation from service and his VA diagnosis of severe obstructive sleep apnea. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. 6. Schedule the Veteran for a VA examination to evaluate his right ankle disability. If feasible, the examination may be conducted via telehealth or similar service during the social distancing restrictions. The examiner is to be provided access to the Veteran's entire claims file, and must specify in the report that these records have been reviewed. The examiner should then discuss: a) What are the Veteran's current right ankle disabilities? b) For all disorders found, is it at least as likely as not that the disorder was either incurred in or related to any event or injury in service? Even if the Veteran's service treatment records have not been found, please consider the Veteran's reports of injuring his ankle while on watch on the USS Albany, and the credible statements submitted by his supervisor and his wife which verify this account. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. 7. Schedule the Veteran for a VA examination with to evaluate any current heart disorders and chest pains. If feasible, the examination may be conducted via telehealth or similar service during the social distancing restrictions. The examiner is to be provided access to the Veteran's entire claims file, and must specify in the report that these records have been reviewed. The examiner should then discuss: a) Does the Veteran have any current heart disorders? If no heart disorder is found, what is the likely etiology of his reported chest pains? b) For all disorders found, is it at least as likely as not that the disorder was incurred in or caused by any event or injury in service? Please consider the Veteran's reports that his chest pains began in service and that he was evaluated in service for his chest pains. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. 8. If any medical records are obtained which establish that the Veteran does have a diagnosis of TMJ or other jaw disorder, obtain an addendum medical opinion to address its etiology. The examiner is to be provided access to the Veteran's entire claims file, and must specify in the report that these records have been reviewed. The examiner should then discuss: For all TMJ or other jaw-related disorders found, is it at least as likely as not that the disorder was either incurred in or related to any event or injury in service? Please consider the Veteran's reports that he has had popping in his right jaw since service. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.