Citation Nr: 21067242 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-66 584 DATE: November 3, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for tender joints, to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for residuals of colon cancer, to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, and to include as secondary to service-connected hemorrhoids, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for blocked nasal passages, to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for bilateral flat feet is remanded. Entitlement to service connection for pseudofolliculitis barbae is remanded. FINDING OF FACT The Veteran's sleep apnea began during active service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran served in the United States Marine Corps Reserves with honorable active duty service from October 1985 to February 1986, from January 1991 to May 1991, and from February 2003 to December 2003, to include service in the Southwest Asia (SWA) Theater of operations during the Persian Gulf War. He served as a reservist between these periods of active duty and following his third period of active service through May 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran and his spouse testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. The Board notes that the Veteran also perfected an appeal for entitlement to service connection for hemorrhoids. During the pendency of the appeal, in a May 2019 rating decision, the RO granted service connection for hemorrhoids. As such, this issue is not before the Board. SERVICE CONNECTION Generally, to establish service connection, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for obstructive sleep apnea is granted. The Veteran seeks entitlement to service connection for obstructive sleep apnea. Throughout the appeal period, the Veteran has stated that he first began experiencing symptoms of this condition during active service. As an initial matter, post-service medical records show that the Veteran's medical history includes sleep apnea. See April 2019 VA Gulf War examination. Furthermore, during the July 2021 hearing, the Veteran testified that he was issued a CPAP machine by VA. There is no reason to question the veracity of the Veteran. Thus, the first element of service connection is met. In an October 2014 statement, the Veteran's spouse indicated that the Veteran had a loud snore while sleeping that woke up him up during the night. She further stated that the Veteran was restless while sleeping and shook in his sleep. She indicated that he had episodes where she had to wake him up to make sure that he was still breathing. During the July 2021 hearing, the Veteran's spouse testified that the Veteran stops breathing while sleeping and that she first noticed this while he was in service. In a July 2021 statement, a fellow servicemember indicated that he served with the Veteran during many deployments, including the deployment to Southwest Asia. He stated that, while bunking with the Veteran on many of these deployments, he has known of the Veteran's complaints related to sleep disturbance. In an additional July 2021 statement, another fellow servicemember indicated that he served with the Veteran during their deployment in Saudi Arabia. He stated that, during their deployment, he bunked directly across the tent from the Veteran. He further stated, "At night while sleeping, I could hear him snoring and at times gasping for air." The Board notes that, while the record includes an April 2019 VA opinion in which the examiner provided a negative nexus opinion, the Board finds that the statements of the Veteran, his spouse, and the fellow servicemembers regarding the onset of his symptoms and his symptoms since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In addition, the competent and credible statements, as discussed above, show that the Veteran's sleep disorder began during active service and continued post-service. As noted in the preceding paragraph, the Veteran, his spouse, and roommates in service are certainly competent to testify to symptomatology such as snoring and cessation of breathing. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for sleep apnea is warranted. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for tender joints, to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, is remanded. See Argument Below 2. Entitlement to service connection for residuals of colon cancer, to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, and to include as secondary to service-connected hemorrhoids, is remanded. See Argument Below 3. Entitlement to service connection for erectile dysfunction, to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, is remanded. See Argument Below 4. Entitlement to service connection for blocked nasal passages, to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, is remanded. See Argument Below 5. Entitlement to service connection for bilateral flat feet is remanded. See Argument Below 6. Entitlement to service connection for pseudofolliculitis barbae is remanded. As an initial matter, the Board notes that there are outstanding records. A review of the record indicates that the Veteran's service treatment records, as contained in his electronic claims folder, may not be complete. Specifically, it does not appear that the entrance examination reports for the Veteran's periods of active service, as well as the separation examination report for the Veteran's third period of active service, have been associated with the claims file. Although it appears that the Agency of Original Jurisdiction (AOJ) made an attempt to obtain the Veteran's outstanding service treatment records, it is unclear to the Board as to whether such records do not exist or that any further efforts to obtain them would be futile. See February 2015 deferred rating decision. The claims file does not contain a formal determination that such records do not exist or that further efforts to obtain such records would be futile, or any notification to the Veteran of such a finding, as required by governing regulation. See 38 C.F.R. § 3.159(c)(2), (e). Thus, on remand, an exhaustive search for the Veteran's missing service treatment records should be undertaken, and the Veteran should be notified of all unavailable records. Furthermore, as previously indicated, during the time in between his periods of active service and following his final period of active service through May 2005, the Veteran served as a reservist. The claims file does not contain a record of the Veteran's pertinent periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). On remand, the AOJ is directed to undertake all appropriate development to determine the Veteran's dates of ACDUTRA or INACDUTRA during the Veteran's periods of service as a reservist. The AOJ is further directed to confirm that all of the Veteran's military treatment records have been obtained from all appropriate periods of duty. All efforts to obtain these records should be documented in the claims file and the provisions of 38 C.F.R. § 3.159(e) must be followed. Additionally, the Board notes that no VA treatment records are of record. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board notes that the record reflects that the Veteran underwent a sleep study with VA in May 2019; however, this sleep study report has not been associated with the claims file. Hence, the Board finds that the RO should obtain this treatment record, as well as any other outstanding VA treatment records, and associate any such records with the Veteran's claims file. The record reflects that the Veteran was afforded VA examinations for his claimed disabilities and a Gulf War examination in April 2019. The Board notes that these VA examinations were conducted after issuance of the rating decision on appeal; thus, the Board finds that the AOJ failed in its duty to assist by not obtaining VA examinations to determine the nature and etiology of the Veteran's various disorders prior to the rating decision on appeal. For each claimed disability, the April 2019 examiner provided a negative nexus opinion. However, as discussed above, there are outstanding records. Thus, as the April 2019 examiner did not have the Veteran's complete record, the examiner did not review all relevant, pertinent evidence of record. Consequently, the Board finds that a new VA examination for each claimed disability should be conducted on remand. With specific regard to the claims of entitlement to service connection for tender joints, residuals of colon cancer, erectile dysfunction, and blocked nasal passages, the Veteran asserts that these claimed disabilities are related to environmental exposures from the Gulf War. During the July 2021 hearing, the Veteran testified that, during his service in Southwest Asia, he was exposed to burn pits and that he could "literally taste the soot that was in the air." The Board finds that the April 2019 VA examinations are inadequate, as the examination reports do not address whether symptomatology reported by the Veteran in relation to his claimed disabilities of tender joints, residuals of colon cancer, erectile dysfunction, and blocked nasal passages could be attributed to chemical exposure. Accordingly, a remand is required to obtain new VA medical opinions to determine whether these claimed disabilities are related to environmental exposures in the Gulf War. Furthermore, with further regard to the erectile dysfunction claim, the Board notes an additional inadequacy as to the VA examination provided in conjunction with this claim in April 2019. While the Veteran indicated onset of this condition in 2001 during the examination, the examiner noted a diagnosis of 2019. Finally, with further regard to the colon cancer residuals claim, during the July 2021 hearing, the Veteran raised a new theory of entitlement. He asserted that his colon cancer may be directly related to his service-connected hemorrhoids (which is not at issue in this appeal). The record does not include a medical opinion addressing secondary service connection. Thus, in light of the new theory presented during the July 2021 hearing, the Board finds that a remand is also required to obtain a VA opinion addressing the possible etiological connection between the service-connected hemorrhoids and his claimed colon cancer disability. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records, including the May 2019 VA sleep study, that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Undertake all appropriate efforts to obtain any missing service treatment records, to include the Veteran's enlistment and separation examinations, from all appropriate periods of duty, to include records associated with the Veteran's service as a reservist. All efforts to obtain these records should be documented in the claims file and the provisions of 38 C.F.R. § 3.159(e) must be followed. 3. Undertake all appropriate efforts to determine the Veteran's dates of ACDUTRA and INACDUTRA during his periods of service as a reservist. All efforts to obtain this information should be documented in the claims file and the provisions of 38 C.F.R. § 3.159(e) must be followed. 4. After completing the above development, schedule the Veteran for examination(s) by an appropriate clinician to determine the nature and etiology of his claimed disabilities of tender joints, residuals of colon cancer, erectile dysfunction, and blocked nasal passages. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disabilities. Following a review of the relevant records and lay statements, the examiner should state an opinion as to whether it is at least as likely as not that the Veteran has a current disability related to tender joints, residuals of colon cancer, erectile dysfunction, and blocked nasal passages. If a diagnosis is made, then the examiner shall provide an opinion as to whether it is at least as likely as not that the diagnosed disorder(s) was/were incurred during or aggravated by the Veteran's active military duty, to include as due to in-service environmental hazards from his service in Southwest Asia (to include exposure to unknown chemicals, gases, oil fires, and bombs). If no diagnosis can be made, then the examiner shall provide an opinion regarding whether it is at least as likely as not that the Veteran manifests signs and symptoms of any undiagnosed illness. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's statements indicating his exposure to unknown chemicals, gases, oil fires, and bombs, and that he experienced symptoms related to the claimed disabilities during service. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. 5. Then, schedule the Veteran for examination(s) by an appropriate clinician to determine the nature and etiology of his claimed disabilities of bilateral flat feet and pseudofolliculitis barbae. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disabilities. For each claimed disability, the examiner must opine whether it is at least as likely as not that any diagnosed disability manifested during, or as a result of, active military service. All lay statements describing the Veteran's symptoms, manifestations, and onset must be fully considered and discussed. The examiner may not merely dismiss the Veteran's statements due to lack of contemporaneous medical records. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 6. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.