Citation Nr: 21074753 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-34 426 DATE: December 16, 2021 ORDER The issue of entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED The issue of entitlement to an evaluation in excess of 10 percent disabling for service-connected urticaria vasculitis with perirectal abscess and scar, is remanded. The issue of entitlement to an initial evaluation in excess of 10 percent disabling for service-connected painful scar, perirectal abscess associated with urticaria vasculitis with perirectal abscess and scar, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his OSA began during active service. CONCLUSION OF LAW The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1983 to November 2003. In May 2019, the Veteran testified under oath before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. In February 2021, the appeal was remanded for additional development. 1. Entitlement to service connection for obstructive OSA. The Board finds that the Veteran meets the criteria for service connection for OSA. First, the Veteran has a diagnosis of OSA. See VA examination report, May 2021. At the May 2019 videoconference hearing, the Veteran testified to the following: ". . . when me and my wife got married, she just said there would be nights that I would just start popping in bed. It would just jolt and after she after I had the test done and the technicians and the doctor said what sleep apnea was that that jolt was me breathing again." Further, the Veteran stated: My wife said that I snored like a chainsaw and that when I stopped snoring, that's when I would jolt. That I would -- it was like my whole body was doing a pancake on the ground that my legs and arms would just go everywhere. It was like getting hit with electricity, she said. And that's -- she said it sounded like a gasp. And then we started, after I got out, that's when we started hearing about this sleep apnea. We'd never heard of it before. According to a VA Form 21-0538, the Veteran married in July 1993, which would have been during his active-duty service. In a May 2019 statement, the Veteran's spouse recounts that the Veteran would jerk/jolt when sleeping. The dates she cites are November 1994 and April 2000 (and "well over 2 years," presumably, thereafter), both periods are encompassed by his active-duty service. While the Veteran's spouse appears to attribute these symptoms, first to a back injury and then to a medication and skin condition, she notes that "[a]fter we found out about sleep apnea and had him tested, and he started wearing the mask and taking the restless leg meds, he also was put on sleep meds. He is able to sleep." Thus, it appears that while she may have attributed the jerking/jolting in sleep at first to other causes, these symptoms were relieved, at least in part, after the administration of OSA treatment. The Board acknowledges the May 2021 VA negative nexus opinion addressing direct service connection; however, this opinion does not address the above contentions regarding in-service onset and the Board affords it little probative weight. The Board acknowledges the other May 2021 VA opinions, but they pertain to secondary service connection. Further, the Board acknowledges the October 2021 VA negative nexus opinion addressing direct service connection; however, the Board also affords it little probative weight. The opinion states: "During service, sleep problems, were acute only. There is no evidence of chronicity of care and symptoms are subjective only. A nexus has not been established." However, as discussed above, the Veteran's spouse identified periods throughout his active-duty service where she observed the Veteran jerking/jolting while sleeping. This suggests to the Board that his symptoms were ongoing. Further, the Veteran and his spouse are competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Finally, the Board acknowledges the other October 2021 VA opinions, but they pertain to secondary service connection. Regarding other prior opinions, the Board has addressed deficiencies in other VA opinions, as well as the reasons for further development, in its prior decisions. See BVA remands, May 2019, and February 2021. Accordingly, given the above, the Board cannot conclusively disassociate the current disability from the Veteran's service. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that criteria for service connection have been met. Therefore, service connection for OSA is warranted, and the issue is granted. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected urticaria vasculitis with perirectal abscess and scar. 2. Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected painful scar, perirectal abscess associated with urticaria vasculitis with perirectal abscess and scar. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. In the February 2021 remand, the Board noted that outstanding private treatment records were identified at the May 2019 videoconference hearing. This was reiterated in the May 2019 Board remand, which directed that any outstanding treatment records be obtained. The Board acknowledged that the Veteran was sent a development letter in November 2019, providing him with VA Forms 21-4142 and 21-4142a; however, it did not appear that a response was received. Upon remand, the Board afforded the Veteran the opportunity to identify any private treatment records to be obtained. Following the February 2021 remand, the Veteran was again provided VA Forms 21-4142 and 21-4142a. See Subsequent Development Letter, February 2021. In February 2021, the Veteran responded, but the provider identified was determined to be non-private. See Correspondence, February 2021, and August 2021. As the Board is again remanding this matter, it will again afford the Veteran the opportunity to identify the private provider discussed at the hearing, or any other from whom he received treatment. The Board notes that there is a scanned image of a CD on the electronic docket in August 2021. The CD is labelled with the Veteran's name and birthdate, and "Medical Record." The Board acknowledges that there are medical records associated with the electronic claim file in August 2021. The Board is inclined to assume that these August 2021 medical records are those contained on the CD. However, the CD label does not identify from which facility it originates, that is, which "Medical Record" it contains. To ensure that there are no outstanding records, the Board asks that upon remand, the AOJ confirm that the scanned image of the CD refers to the medical records associated with the claim file in August 2021. If not, the records contained on the CD should be associated with the file. Further, the Board acknowledges the following notation in the May 2021 VA examination report: "req clear for SSI." It is unclear to the Board to what this refers. To the extent that it may refer to a request made to the Social Security Administration (SSA) for records, the Board has reviewed the claim file and does not see when such a request occurred. However, given that the Board is remanding, it asks that, if such a request was made, it be associated with the claim file. If a request is outstanding or needed, relevant SSA records should be associated with the claim file. 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 issues on appeal. The Board notes that there is a scanned image of a CD on the electronic docket in August 2021. The CD is labelled with the Veteran's name and birthdate, and "Medical Record." The Board acknowledges that there are medical records associated with the electronic claim file in August 2021. The Board is inclined to assume that these August 2021 medical records are those contained on the CD. However, the CD label does not identify from which facility it originates, that is, which "Medical Record" it contains. To ensure that there are no outstanding records, the Board asks that upon remand, the AOJ confirm that the scanned image of the CD refers to the medical records associated with the claim file in August 2021. If not, the records contained on the CD should be associated with the file. Further, the Board acknowledges the following notation in the May 2021 VA examination report: "req clear for SSI." It is unclear to the Board to what this refers. To the extent that it may refer to a request made to the Social Security Administration (SSA) for records, the Board has reviewed the claim file and does not see when such a request occurred. However, given that the Board is remanding, it asks that, if such a request was made, it be associated with the claim file. If a request is outstanding or needed, associate with the claim file relevant records from the SSA pertaining to any application or award of disability benefits to the Veteran. 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. If upon completion of the above action the issues are 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.