Citation Nr: 21067459 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-23 942 DATE: November 4, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1971 to November 1975, from April 1976 to September 1976, from September 2005 to February 2006, and from January 2009 to June 2009, with additional service in the Air Force Reserves until March 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Agency of Original Jurisdiction (AOJ). In July 2021, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. Issue: Entitlement to service connection for sleep apnea. For reasons explained below, the Board finds that remand is necessary. At his hearing, the Veteran presented testimony that his sleep apnea symptoms began during his deployment between 2005 to 2007 where he was exposed to burn pits and sandstorms. See Hearing Transcript at 6. Specifically, the Veteran described having "a lot of sandstorms" and regarding burn pits, the material that was burning included "human waste, diesel fuel, trash, etc" and "body parts". Id. at 7. The Veteran's post-deployment health assessment (PDHA) dated May 2009 shows he reported exposure to "smoke from burning trash or feces" and "smoke from oil fire." He also reported being treated for cough during his deployment. See PDHA dated May 2009. The Veteran's service medical records show he was treated in March 2009 for "upper respiratory infection; cough". The assessment at the time was "upper respiratory infection, acute bronchitis, sinusitis acute." Effective August 5, 2021, VA amended its adjudication regulations to establish presumptive service connection asthma, rhinitis, and sinusitis (to include rhinosinusitis) in association with the exposure of fine particulate matter for those Gulf War Veterans who served in Southwest Asia, Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001. See Presumptive Service Connection for Respiratory Conditions due to Exposure to Particulate Matter, 86 Fed. Reg. 42724-33 (Aug. 5, 2021) (to be codified in 38 C.F.R. § 3.320). Here, the Veteran has qualifying service in Southwest Asia theater of operations (Iraq and Kuwait), and thus, in-service exposure to fine particulate matter is conceded. Moreover, the Veteran has not been afforded a VA examination for his service connection claim, and the Board finds that such development is necessary as the evidence of record does not contain sufficient medical evidence to make a fully informed decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, remand is needed to obtain a VA examination and opinion on the nature, onset, and etiology of any respiratory disorder to include addressing the Veteran's contention that sleep apnea symptoms manifested after being exposed to burn pits. Next, although sleep apnea is not listed among those for which presumptive service is afforded based on fine particulate matter exposure, the Veteran is not precluded from establishing service connection for such disability as due to fine particulate matter with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Finally, at his hearing the Veteran disagreed with the AOJ's determination that sleep apnea existed prior to service. The Veteran asserted that "it got worse" during the "30 years in the military" and did not understand how the AOJ determined that he had sleep apnea prior to being in the military or that he did not have it in the 30 years in service. See Hearing Transcript at 9. By rating action of September 2014, the AOJ denied service connection for sleep apnea finding that sleep apnea syndromes existed prior to service. The AOJ indicated there was no "objective evidence of worsening of a pre-existing condition" to establish service connection by aggravation. The AOJ indicated there was "no evidence that the condition permanently worsened as a result of service." Indeed, prior to a period of active duty, the record shows that the Veteran was diagnosed with obstructive sleep apnea in June 2005. See Sleep study dated June 2005 by Pulmonary Physicians of South Florida. However, the Veteran's service treatment records show he was presumed to have been in sound condition on entry, with no known respiratory problem or sleep apnea "noted" by a medical examiner. In fact, he was consistently found "qualified for world wide duty" on routine/annual health assessments and pre/post-deployment health assessments. To that end, in cases where the disease or injury at issue is not noted on the entrance examination, such as the instant case, a very specific standard is for application. For compensation purposes, a veteran will be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time or where clear and unmistakable evidence demonstrates that the injury or disease preexisted and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.306(b). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The Board observes that clear and unmistakable is a high standard. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 Here, the Veteran has not been afforded a VA examination for sleep apnea and there is no medical opinion of record that addresses the presumption of soundness with regards to his obstructive sleep apnea diagnosed in June 2005 (prior to his periods of active duty). For this reason, the Board is without the medical evidence necessary to make a fully informed decision on this claim. McLendon, 20 Vet. App. at 79. Accordingly, remand is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of any respiratory disorder, to include sleep apnea symptoms manifested in service. The Veteran's claims file must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. The examiner should provide an opinion as to the following: a) Determine whether the Veteran's symptoms of sleep apnea that manifested in service are attributable to a diagnosis or any respiratory disorder. b) For each such diagnosed disability, is it at least as likely as not (a 50 percent or greater probability) that the disability began during service or etiologically related to service including environmental exposures during service in Southwest Asia (i.e. burn pits and sandstorms)? c) The examiner is also asked to address whether there is clear and unmistakable evidence (i.e., undebatable) that the Veteran's sleep apnea pre-existed his service? d) If so, is there clear and unmistakable evidence that the Veteran's preexisting sleep apnea, was not aggravated, worsened beyond the natural progress of the disability during his service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease). In rendering the opinion, the examiner should consider sleep study dated June 2005 and August 2013; post-deployment health assessment (PDHA) dated May 2009 showing exposure to smoke from burning trash or feces and smoke from oil fire; service medical records of March 2009 showing assessment of upper respiratory infection, acute bronchitis, and sinusitis acute; hearing testimony of June 2021. A complete rationale for all opinions is requested. 2. Upon completion of the requested development and any additional development deemed appropriate, readjudicate the claim on appeal. The AOJ should consider the applicability of VA's amendment to its regulations to establish presumptive service connection for three chronic respiratory health conditions in association with exposure to fine particulate matter for those Gulf War Veterans who served in Southwest Asia. See 86 Fed. Reg. 42724 (Aug. 5, 2021). If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.