Citation Nr: 21068386 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-39 815A DATE: November 10, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED Entitlement to service connection for a gastrointestinal disability, to include gastroenteritis is remanded. Entitlement to service connection for damaged upper front teeth is remanded. Entitlement to an initial compensable rating for residuals of facial injuries/fractures is remanded. FINDING OF FACT Resolving any reasonable doubt in favor of the Veteran, his currently diagnosed OSA is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 2008 to October 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that on the Veteran's August 2017 substantive appeal to the Board (VA Form 9), the Veteran did not indicate whether he wanted a Board hearing for his claimed conditions. As such, in a September 2021 notification letter, VA requested that the Veteran fill out a form indicating whether he wished to have a Board hearing. The notification letter informed the Veteran that if he did not respond within 30 days of the date of the letter, the Board would assume that he does not want a hearing and would proceed with his claim. To date, the Veteran has not responded to the notification letter nor indicated that he wishes to have a Board hearing. As such, the Board will proceed with adjudicating his claims. The Board notes that for the claims being remanded for additional development, the Veteran may clarify his intentions with respect to a hearing and request a hearing at any time before the matter again comes before the Board. Additionally, after issuance of the Statement of the Case (SOC), new and relevant VA treatment records and examinations were added to the Veteran's claims file. A waiver of initial Agency of Original Jurisdiction (AOJ) review of the evidence from the Veteran or his representative is not of record; however, there is no prejudice to the Veteran as his claims are either granted in full or remanded. The Board notes that upon remand, the AOJ will review this new evidence in the first instance during readjudication of the claim. Entitlement to service connection for OSA Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102. In the present case and resolving all doubt in favor of the Veteran, the Board concludes that the Veteran's OSA had an onset during active service. First, the Veteran has a current diagnosis of OSA, which was confirmed by a sleep study in March 2014 and within approximately six months of his separation from service. See April 2014 VA treatment record (reflecting the Veteran had mild OSA based upon a March 2014 sleep study); June 2014 VA sleep apnea examination. Second, the Board finds that although sleep apnea was not diagnosed during service, relevant sleep symptoms were noted in the Veteran's service treatment records (STRs). For example, an August 2011 STR reflects that the Veteran reported trouble sleeping. Thereafter, an October 2012 behavioral medicine initial consultation STR reflects that the Veteran had insomnia and also endorsed poor sleep with waking up three times the prior night. A January 2013 STR further indicates that the Veteran had sleep problems, including not feeling refreshed, and that he was assessed with sleep disturbances. Another January 2013 STR indicates that the Veteran wakes up at least once a night and he never wakes up feeling rested. A September 2013 STR, approximate to the Veteran's discharge from service, notes that the Veteran's problems included sleep disturbances and insomnia while a September 2013 separation assessment indicated the Veteran had insomnia. Thus, although there was not an in-service diagnosis of sleep apnea, there were in-service sleep symptoms, and an assessment of sleep disturbances separate from his insomnia diagnosis. Therefore, the Board finds that the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that the Veteran's OSA had an onset during active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Although there is no etiological opinion of record (the June 2014 VA examiner noted the OSA diagnosis but did not provide a nexus opinion), the weight of the evidence indicates that the Veteran's OSA had an onset during active duty and has existed since that time. See 38 C.F.R. § 3.303(d) (noting that "[s]ervice connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service."). Notably, the Veteran reported in-service symptoms approximate to his discharge from service, reported additional symptoms and sleep apnea within two months after his discharge from service, and was diagnosed with OSA within one year from his separation from service. In this regard, a December 2013 VA treatment record, approximately two months after the Veteran's separation from service, reflects that the Veteran planned to request a consultation from a primary care provider for a sleep study since his spouse indicated that he snores and has episodes of sleep apnea. Another December 2013 VA treatment note reflects that the Veteran had combat related illness or injuries including sleep apnea. A February 2014 VA treatment record further reflects that the Veteran had complaints of snoring, hypersomnia, and witnessed apnea, and that his medical history included insomnia. In a March 2014 statement, the Veteran reported that he had become a very light sleeper and was easily startled, which affected his sleep patterns. Moreover, at the June 2014 VA sleep apnea examination, the VA examiner noted that the Veteran's history included complaints of frequent nocturnal awakening, snoring, and witnessed apnea and that the Veteran denied nocturnal awakening and snoring prior to service. The Board finds the Veteran's statements regarding the presence of these symptoms during and approximate to his separation from service competent as they are capable of lay observation. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). The Board also finds these statements credible as they are supported by the presence of reports of sleep difficulties in his STRs and were made for the purposes of medical treatment and evaluation. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Accordingly, the Board assigns great probative weight to the Veteran's reports of sleep symptoms associated with sleep apnea and finds, based on the Veteran's probative lay statements of symptoms approximate to his separation from service and the subsequent diagnosis of OSA within months thereafter, that his OSA had an onset in service. The Board acknowledges that sleep apnea is not a chronic disability set forth in 38 C.F.R. § 3.309(a), and therefore service connection may not be presumptively granted because it was diagnosed within one year of the Veteran's separation from service. However, it is reasonable to conclude that the Veteran's OSA, which was diagnosed approximately six months after separation from service, was present prior to that time especially given the Veteran's reports to medical providers of witnessed sleep apnea symptoms within two months of his separation from service and his in-service assessment of sleep disturbances. Additionally, there is no contrary medical opinion or statement of record. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for OSA is granted. See 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for a gastrointestinal disability, to include gastroenteritis As an initial matter, the Board notes that when a veteran makes a claim, he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such, the Board has re-characterized the issue of entitlement to service connection for gastroenteritis as entitlement to service connection a gastrointestinal disability, to include gastroenteritis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Upon review of the record, the Board finds that a remand is warranted for a VA examination and medical opinion because the only VA examination of record, in June 2014, is insufficient to decide the Veteran's claim. In this regard, at the June 2014 VA examination, the Veteran reported that he experienced diarrhea since service and was noted to have abdominal pain that occurs at least monthly. The June 2014 VA examiner found that the Veteran did not have any diagnosable stomach or duodenum conditions. Following this examination, review of the record reflects that the Veteran has received additional treatment for his gastrointestinal complains. In this regard, a February 2016 VA treatment record reflects that the Veteran had active medication for gastric reflux. Additionally, a December 2015 VA treatment record reflects that the Veteran had a history of Hirschsprung's syndrome and that he complained of constipation and daily abdominal pain. The VA treating physician suspected the Veteran's overall symptoms were constipation-predominant irritable bowel syndrome (IBS-C) related but noted that epigastric pain in the setting of nonsteroidal antiinflammatory drugs (NSAID) use should be evaluated with an upper endoscopy. As such, the Veteran underwent an upper endoscopy procedure for his abdominal pain in December 2015. In light of these treatments and given that the Veteran was suspected to have IBS, a remand is warranted for an updated VA examination to clarify whether the Veteran has a diagnosed disability related to his gastrointestinal complaints. Additionally, as the Veteran qualifies as a Persian Gulf War Veteran, a VA examination is also necessary to determine whether the Veteran's claimed condition constitutes a qualifying chronic disability for purposes of establishing entitlement to service connection on that basis. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. 2. Entitlement to service connection for damaged upper front teeth Under current VA regulations, compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis. See 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. Otherwise, a Veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161; Simington v. West, 11 Vet. App. 41, 44 (noting the distinction between replaceable missing teeth which can be service connected for treatment purposes only and teeth lost "as a result of 'loss of substance of body of maxilla and mandible' which can be assigned ratings anywhere from 0 to 100 % for compensation purposes"). In the present case, the extent of the Veteran's current dental condition is unclear. In this regard, the Board acknowledges that the Veteran underwent a VA dental conditions examination in May 2014 where the VA examiner indicated that teeth #s 9-11 were missing, and that the Veteran retained non restorable roots for tooth # 12. However, since that examination and during the pendency of the appeal, the Veteran has undergone extensive dental treatment and procedures. For example, a February 2016 VA treatment record reflects that the Veteran had edentulous space for teeth # 9-11 secondary to a motor vehicle accident trauma in the past, that he had failed onlay grafting twice, and that he had a severely rotated tooth # 12 with mesially dilacerated roots that prevented implant placement at site # 11. The treatment record also reflects that the Veteran elected to have a block graft from the ramus or symphysis to the anterior left maxilla labial # 9-11, extraction of tooth #12 with guided tissue regeneration to site, and implants to edentulous sites # 9-13. Thereafter, February and March 2016 VA treatment records reflect that the Veteran underwent a block graft harvest from his anterior mandible symphysis to his left anterior maxilla and had an extraction/graft related to tooth # 27. A subsequent May 2017 VA clinic record further reflects that the Veteran presented for extraction of tooth # 12 and tooth # 31. In addition, a March 2019 VA dental treatment note indicates the Veteran's missing teeth include teeth #s: 2, 9, 10, 11, 13, 16, 17, 27, and 32. In light of the Veteran's continuous dental procedures since the May 2014 VA dental conditions examination, the Board finds that a remand is warranted for an updated VA dental examination and opinion that addresses all of the Veteran's relevant missing teeth and considers all of the Veteran's pertinent dental procedures. Additionally, as it is unclear whether the Veteran has lost any substance of the mandible or maxilla, which is a determination that is necessary to decide whether the Veteran has a current disability for compensation purposes, on remand a VA examiner must also address this issue in relation to the Veteran's missing teeth. 3. Entitlement to an initial compensable rating for residuals of facial injuries/fractures The Veteran contends that he is entitled to a compensable rating for his service-connected residuals of facial injuries/fractures. Specifically, in his June 2015 Notice of Disagreement, he asserted that he feels pain in his facial fractures and cannot chew food. Review of the record shows that the Veteran was scheduled for a VA examination and that the Veteran requested to reschedule the examination once he had another VA appointment scheduled. See July 2017 email correspondence. As such, the evidence reflects that the Veteran's examination request was suspended and that the request would be re-issued after 30 days. See id. However, it does not appear that the AOJ re-issued the examination request and, consequently, the Veteran has not been afforded a VA examination to assess the severity of his disability. Therefore, a remand is warranted to schedule the Veteran for a VA examination to assess the severity of his service-connected disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records, to include dental records located in VistA. The last VA treatment of record is dated September 2019. 2. Provide the Veteran with another opportunity to identify and/or submit any outstanding private treatment records related to his claims. The Veteran reported treatment for his pain by a private provider. See December 2015 VA treatment record. After obtaining any necessary authorization from the Veteran, all outstanding, identified records should be obtained. 3. Then, schedule the Veteran for an appropriate VA examination to determine the nature and origin of his claimed gastrointestinal disability, to include gastroenteritis. The evidentiary record, to include this Remand, must be made available to and be reviewed by the examiner. Any indicated tests and studies should be performed. The examiner should respond to the following: (a) Identify/diagnose any gastrointestinal disability attributable to the Veteran throughout the appeal period. The examiner should consider the December 2015 VA treatment record reflecting that the Veteran was suspected as having IBS-C. (b) For each identified diagnosis, opine as to whether it is at least as likely as not (50 percent probability or greater) that such had an onset during active service or is otherwise related to the Veteran's active service, to include any injury or environmental exposure therein. (c) If any gastrointestinal symptomatology CANNOT be attributed to a known clinical diagnosis, the examiner should describe any pertinent objective findings related to such symptomatology. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). (d) If the Veteran has any symptomatology that IS NOT or CANNOT BE attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that there are symptoms due to any undiagnosed illness, or a medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Gulf War. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. In providing the above opinions, the examiner should consider the STRs noting gastroenteritis, diarrhea, heartburn, and abdominal pain; post-service treatment records reporting diarrhea and recurrent stomach/abdominal problems; and the Veteran's lay statements that he experienced diarrhea since service. A clear rationale for all opinions must be provided and a discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. 4. Schedule the Veteran for an updated VA examination to ascertain the nature of the Veteran's damaged teeth. All indicated evaluations, studies, and tests deemed necessary should be accomplished. The entire claims file, to include a copy of this Remand, must be made available to the examiner designated to provide an opinion. The examiner must elicit a complete history of the Veteran's dental condition, and the examination report should include a discussion of the Veteran's documented medical history and assertions. The examiner should respond to the following: (a) The examiner is asked to address/list all current dental disorders. (b) For each missing tooth, comment on whether the missing tooth is considered a replaceable missing tooth. (c) For each non-replaceable missing tooth, comment on whether such resulted from loss of substance of the body of the maxilla or mandible due to trauma or disease (such as osteomyelitis, but not periodontal disease) during service, to include from the in-service motor vehicle collision during the Veteran's deployment in Saudi Arabia. (d) If a non-replaceable missing tooth resulted from loss of substance of the body of the maxilla or mandible due to trauma or disease, specifically note the trauma or disease resulting in tooth loss. (e) For each dental disorder other than missing teeth, state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is related to service, to include from the in-service motor vehicle collision during the Veteran's deployment in Saudi Arabia and/or residuals there from. A complete rationale for all opinions must be provided. In providing the above opinion, the VA examiner should consider the in-service dental records, to include the records reflecting the Veteran underwent a bone graft and that he had a fracture of the anterior aspect of the left maxillary alveolar processes with disruption and displacement of the left upper incisors and canine tooth. 5. Schedule the Veteran for a VA cranial nerves examination to determine the current severity of the Veteran's service-connected residuals of facial injuries/fractures disability. The entire claims file, including a copy of this Remand, should be made available to and be reviewed by the VA examiner. All indicated testing should be accomplished and all symptomatology associated with the disability should be identified and reported in detail. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.