Citation Nr: 21075382 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-19 627 DATE: December 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served in active duty in the United States Army from January 2004 to March 2005, June 2006 to November 2007, September 2010 to November 2011, and September 2017 to May 2018. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a VA Regional Office (RO). The Veteran asserts that he first became aware of his sleep apnea during his deployment during his third period of service, which was from September 2010 to November 2011. He was diagnosed with sleep apnea by a sleep study in March 2014. The question before the Board is whether the Veteran's sleep apnea is at least as likely as not due to his period of service from September 2010 to November 2011. Alternatively, the question is whether the presumption of soundness is rebutted for his fourth period of service, which was from September 2017 to May 2018. Lastly, the question is whether his OSA was caused or aggravated by his service-connected PTSD. For the reasons discussed below, remand for a medical opinion is necessary. In his June 2019 VA Form 9, the Veteran noted his OSA symptoms began in 2010-2011 while deployed in Kuwait. He stated, "[w]e slept in open bay sleeping quarters. On multiple occasions I had soldiers and senior NCOs tell me I was snoring and gasping for air. There were times I would fall asleep at my desk." Additionally, April 2020 and December 2020 lay statement letters in the record from Sargent R.S. and the Veteran's wife reported they observed the Veteran's sleep problems and excessive snoring during active duty. A veteran is 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 of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The Veteran's entrance examinations for his periods of active service from September 2010 to November 2011 and from September 2017 to May 2018 are not of record. Absent evidence to the contrary, it is presumed that an entrance examination is provided prior to all periods of active duty service. See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009). The presumption of soundness attaches for both periods. To rebut the presumption of soundness the burden is on VA to satisfy a two-prong test by showing by clear and unmistakable evidence that the Veteran's disability both existed prior to service and was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran does not assert that his sleep apnea existed prior to his period of service from September 2010 to November 2011. Instead, he argues that his symptoms began during this period of active duty, while he was deployed to Kuwait. A VA medical record from December 2013 notes that the Veteran reported snoring and that his wife had witnessed apnea events at night. VA medical records show the Veteran had a sleep study in March 2014, was diagnosed with OSA. An October 2014 pulmonary consultation noted that the Veteran had a CPAP but had "much difficulty" accepting the diagnosis if OSA and had difficulty with the CPAP machine. The record clearly and unmistakably shows that the Veteran's OSA existed prior to his period of service from September 2017 to May 2018. A February 2018 service treatment record specifically stated that the Veteran had sleep apnea, and he "has a CPAP but doesn't use." April 2018 service treatment records also note diagnoses of sleep disorder, unspecified, onset April 2018, and anxiety, insomnia, and PTSD. The Veteran reported 3-5 hours of sleep that was unrestful. The record also indicates that the Veteran sought treatment through VA in 2013 at behest of wife, who noticed mood changes and sleep issues, including thrashing about. Additionally, an April 2018 memorandum for disqualification form service notes diagnoses of insomnia, depression and anxiety, and referral to stateside for psychiatric evaluation and treatment. A May 2018 service treatment record listed sleep apnea in the Veteran's medical history, and a review of systems noted "sleep apnea and wheezing." VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. The Veteran's hearing testimony and statements from his wife and a fellow soldier meet this low threshold. Additionally, the Veteran was diagnosed with sleep apnea between two of his periods of service and his sleep apnea was discussed in his service treatment records from his most recent period of active service. The Board cannot make a fully informed decision on the issue of service connection for OSA because no VA examiner has opined on whether the Veteran's current OSA was incurred in or is otherwise related to his period of service from September 2010 to November 2011. Additionally, because his OSA was diagnosed prior to his last period of active service, an examiner needs to address whether the presumption of soundness may be rebutted. Lastly, the evidence suggests that his PTSD may impact his OSA and an opinion regarding secondary service connection is also needed. The matter is therefore REMANDED for the following action: 1. Provide the Veteran's claims file to a suitable clinician to obtain an opinion regarding the etiology of the Veteran's OSA. The entire claims file and a copy of this remand must be made available to the examiner for review. An examination of the Veteran is only necessary if deemed so by the clinician. The examiner must provide these opinions: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA began during his period of active service from September 2010 to November 2011. (b) Whether it is at least as likely as not that the Veteran's OSA is caused by his service-connected PTSD. (c) Whether it is at least as likely as not that the Veteran's OSA is aggravated by his service-connected PTSD. (d) Whether it is clear and unmistakable that the Veteran's OSA was not aggravated to a permanent degree during his period of service from September 2017 to May 2018. (e) If there is no clear and unmistakable evidence that the Veteran's OSA was not aggravated by his period of service from September 2017 to May 2018, determine whether it is at least as likely as not that it began in or is related to his period of service from September 2017 to May 2018. In providing the opinions, lay statements of the Veteran, his wife, and Sergeant R.S. must be considered. The examiner's attention is called to the following: (a) The March 2014 sleep study diagnosing OSA. (b) February and May 2018 service treatment records documenting OSA. (c) The Veteran's June 2019 Form 9 and December 2020 hearing testimony, describing sleep problems in Kuwait in 2010-2011. (d) April 2020 and December 2020 letters from the Veteran's spouse and Sargent R.S., both of whom noted they observed the Veteran's sleep problems and excessive snoring during service. The examiner must provide all findings, along with detailed rationales for his or her opinion(s), in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for such conclusion(s). 2. Then, readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow a reasonable time to respond before returning the case to the Board for further appellate review. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kathleen M. Fiorillo, 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.