Citation Nr: 21065585 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-05 831 DATE: October 26, 2021 ORDER The issue of entitlement service connection for obstructive sleep apnea (OSA) is granted. REMANDED The issue of entitlement service connection for a back disability is remanded. FINDING OF FACT The Veteran's OSA began during active service. CONCLUSION OF LAW The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps, to include periods of active duty from July 2003 to July 2007, and from March 2009 to August 2010. In October 2021, the Veteran testified under oath before the undersigned Veteran's Law Judge at a travel board hearing. The Board acknowledges document requests from the Veteran's prior representative. However, the Veteran now has a new representative. To the extent that the Veteran or his new representative may desire documents from the claim file, they should submit such a request. Further, in reviewing the record, the Board notes evidence of suicidal ideation in the past year. See, e.g., CAPRI, February 2021; and VA examination, July 2021. Accordingly, the Board will advance the Veteran's case on the docket. 38 U.S.C. § 7107(b); 38 C.F.R. § 20.800(c). Service Connection Entitlement service connection for OSA. The Board finds that the Veteran meets the criteria for OSA. First, the Veteran has a diagnosed disability. See CAPRI, January 2016. In addition, the Veteran experienced symptoms in service that continued thereafter. At the October 2021 travel board hearing the Veteran testified about snoring in service. He described being in the field and others making jokes about his snoring, for example, that he sounded like a bear. When he married in 2015, his wife also complained about his snoring and he decided to record himself. The Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, the Board finds the Veteran's testimony that his symptoms were present in service, and continued thereafter, to be competent and credible. Therefore, the Board finds that the Veteran meets the criteria for service connection. The issue is granted. REASONS FOR REMAND Entitlement service connection for a back disability. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. Specifically, based on testimony provided at the October 2021 travel board hearing, the Board finds that the Veteran should be scheduled for a VA examination. In particular, the examiner is asked to consider the Veteran's contentions regarding wearing heavy gear for long periods of time, as well as any contentions regarding pain he experienced during and after service. The examiner is reminded that the Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, pain with functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1367 (2018). The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to clarify the diagnosis of his claimed back disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran's active duty service. The examiner is asked to specifically address the Veteran's contentions regarding wearing heavy gear for long periods of time, as well as any contentions regarding pain he experienced during and after service. The examiner is reminded that the Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, pain with functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1367 (2018). The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. (Continued on next page) 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.