Citation Nr: 21076979 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-33 330 DATE: December 28, 2021 ORDER Service connection for sleep apnea is granted. REMANDED Service connection for a skin condition (claimed as rash throughout entire body) is remanded. FINDING OF FACT The evidence is at least in equipoise that the Veteran's sleep apnea was incurred in active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 101, 1110; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1991 to June 1991, June 2001 to July 2001, September 2001 to August 2003, and June 2004 to September 2013, with additional periods of active duty for training and inactive duty for training in the California Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2014 and January 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in March 2019. A transcript of the hearing is associated with the claims file. After the Statement of the Case (SOC) was sent to the Veteran in May 2016, additional evidence was associated with the claims file. The Board cannot consider this evidence without a waiver by the Veteran of consideration of the evidence by the agency of original jurisdiction (AOJ) unless the evidence is redundant or not pertinent to the claim being decided or unless the Board determines that the benefit to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1305(c). Here, the Veteran waived AOJ consideration of evidence associated with the claims file through the March 2019 Board hearing, but he has not waived AOJ consideration of evidence associated with the claims file since the March 2019 Board hearing. However, the Board finds that the claim of service connection for sleep apnea may be granted on the current record and the claim for service connection for a skin condition must be remanded for further development. Therefore, the Board may proceed. 1. Service connection for sleep apnea is granted. The Veteran seeks service connection for sleep apnea, which he contends began in 2011 when he was deployed to Qatar. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran's service treatment records do not document complaints suggestive of possible sleep apnea during service, and he denied sleep issues when asked in his February 1999 Report of Medical History and May 2003 Post-Deployment Assessment. Across his March 2019 Board hearing testimony, December 2015 Notice of Disagreement, and July 2019 Form 9, the Veteran reported that he began to have sleep trouble in 2011 but did not seek treatment for his sleep issues for fear of being kicked out. At the hearing, he specifically testified that he woke up "jerkinggasping for air and jerking" when deployed to Qatar. Per a July 2017 Correspondence, the Veteran's wife reported that in 2002, after his last overseas tour, he was not sleeping as much, jumping in his sleep, kicking her, and snoring so loud that she had to sleep in another room. She further reported that his breathing was very bad, and he would stop breathing at times. Based on the context of her statement and review of the Veteran's military personnel records, and taken in light of the Veteran's March 2019 hearing testimony, the Board believes that the Veteran's wife was likely referring to the Veteran's condition in 2012 rather than his condition in 2002. The Board finds the Veteran's lay statements, including those made at the March 2019 Board hearing and made by his wife, to be both competent and credible, as these statements relate to their reports of observable symptomology of sleep apnea. See Layno v. Brown, 6 Vet. App. 465, 469-471 (1994). Additionally, the undersigned had the opportunity to formally observe the Veteran and his wife during the hearing and finds their testimony credible. The Veteran was formally diagnosed with obstructive sleep apnea in October 2014, a little over a year after his separation from service. At the March 2019 Board hearing, he testified that he made an appointment with VA to be seen for his sleep complaints in September 2014, within one year of his separation from service, but was unable to undergo a sleep study until October 2014. After a review of the lay and medical evidence, the Board finds that the Veteran's sleep apnea is at least as likely as not related to service. In making this finding, the Board specifically relied on the Veteran and his wife's competent and credible lay statements as to observable in-service symptomology particularly persuasive. Although these reported symptoms cannot be attributed with his currently diagnosed sleep apnea with medical certainty, the Board finds that the evidence is nonetheless in equipoise as whether this condition had its onset during service. Additionally, although sleep apnea is not a disability that is presumptively related to service, the Board finds the fact that the Veteran sought treatment for sleep-related issues within one year of his separation and was diagnosed with sleep apnea shortly after to support its conclusion that this condition began during service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service-connection is warranted for the Veteran's sleep apnea, and his claim is granted. REASONS FOR REMAND The Veteran seeks service connection for a skin condition, which he contends is due to his last series of anthrax shots during series service and/or changes in environment, diet, and stress during service. See March 2019 Board Hearing Transcript. He was treated for contact dermatitis during service, in January 2003. See January 2003 Chronological Record of Medical Care. The Veteran was afforded a VA examination to assess the nature of his skin condition in October 2014. The examiner documented his January 2003 in-service diagnosis of contact dermatitis and his reports of having a rash intermittently, around three times a year. The examiner determined that the Veteran did not have a rash at the time of the examination and did not opine as to whether the Veteran's reported rash is related to service. VA treatment records document the Veteran's intermittent complaints and constant medication for his skin condition since December 2015. At a December 2015 Same Day Clinic visit, the Veteran reported having a rash across his abdomen since 2003, which started while on active duty. At a January 2016 Dermatology Consult, the Veteran reported a long history of dermatitis since service and his dermatologist diagnosed him with atopic dermatitis. The Veteran has since testified that his dermatologist told him that his skin condition was pretty common, as he went from a controlled environment to an environment where it's 137 degrees, his diet changed, and his stress level was always up. Unfortunately, this statement is not documented in his VA treatment records. Because the Veteran was diagnosed with a post-service skin condition after the VA examination and has not been afforded a VA opinion addressing the etiology of his skin condition and his theories of entitlement, the Board finds that remand is necessary afford the Veteran a new VA examination and to obtain an etiology opinion. The matter is REMANDED for the following action: 1. Obtain VA records for treatment from July 2019 to present. 2. Schedule the Veteran for a VA examination to assess the nature and etiology of his skin condition. After a review of the claims file, specifically including the Veteran's lay statements and in-service treatment for contact dermatitis, the examiner should respond to the following: Is it at least as likely as not that the Veteran's skin condition is related to service, to include as due to anthrax vaccines and/or changes in environment, diet, and stress during service? All opinions must be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.