Citation Nr: 21009458 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-66 278 DATE: February 22, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army National Guard from August 1979 to December 1979, February 2007 to April 2008, February 2009 to July 2009, and May 2012 to May 2013. The Veteran also served on active duty in the United States Army Reserves from February 2003 to October 2004. The Veteran also had periods of active and inactive service from October 2016 through September 2018. For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2018, at which time the Board remanded the matter for the RO to issue a Supplemental Statement of the Case (SSOC) to consider new evidence generated by the VA that was not reviewed in the first instance by the RO. The SSOC has been issued and the matter is properly before the Board for adjudication. Service Connection 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends he is entitled to service connection for sleep apnea. He contends his sleep apnea developed as a result of his active service. The term “active military, naval, or air service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24). Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1110, 1131. The Veteran’s service treatment records report frequent trouble sleeping in the November 2005 report of medical history. The Veteran’s VA treatment records reflect in a July 2008 post-deployment survey for traumatic brain injury, the Veteran reported sleep problems. Additionally, in January 2015 post-deployment health assessments, the Veteran again reported trouble sleeping. The Veteran underwent a General Gulf War VA examination in November 2016. The VA examiner concluded the Veteran had a diagnosis of mild obstructive sleep apnea and it is a disease with a clear and specific etiology and diagnosis. The VA examiner stated this disability is not caused by or a result of specific exposure experienced by the Veteran during his service in Southwest Asia. The VA examiner concluded there is no medical evidence that links the Veteran’s sleep apnea with exposure to fumes, dust, smoke, or any other contaminant. While the VA examiner concluded the Veteran’s sleep apnea was not related to environmental exposures he may have experienced in service, the VA examiner did not provide an opinion regarding direct service connection. The Veteran underwent a VA examination for sleep apnea in November 2016 and his sleep apnea diagnosis was confirmed, but the VA examiner did not provide any opinion as to whether the Veteran’s sleep apnea was related to service. The Board finds the November 2016 VA opinions to be inadequate to the extent that they did not consider all possible avenues of service connection. The November 2016 Gulf War examination concluded there is no medical evidence that links the Veteran’s sleep apnea to exposure to fumes, dust, smoke, or any other contaminant. The November 2016 VA opinion did not provide a nexus opinion. Neither VA examination discussed the Veteran’s post-deployment statements or report of medical history where he reported he had trouble sleeping. Finally, while the Veteran has multiple periods of active duty service as a member of the Army National Guard, his DD-214 from February 2009 to July 2009 is not of record. The agency of original jurisdiction (AOJ) should make efforts to verify all periods of the Veteran’s ACDUTRA and INACDUTRA and supply the Veteran’s DD-214 from the 2009 period of active service. Accordingly, a remand is necessary. The matter is REMANDED for the following actions: 1. Obtain a copy of the Veteran’s DD-214 from February 2009 to July 2009. 2. To the extent possible, identify all periods of ACDUTRA and INACDUTRA during the Veteran’s Reserve and National Guard service based on a review of his service personnel records and any additional development deemed warranted. Prepare a summary of those dates in a memorandum to the Veteran’s claims file. 3. After verifying all periods of service, schedule the Veteran for an examination to determine the nature and etiology of his sleep apnea. The claims file should be made available to and reviewed by the examiner. All appropriate tests should be conducted. The examiner is asked to address the following questions: (a) Please state whether the Veteran’s sleeping impairment is attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology, (2) a diagnosable chronic multi symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? (c) If, after reviewing the Veteran and the claims file, you determine that the Veteran’s disability pattern is either a diagnosable chronic multi-symptom illness with a partially explained etiology ((b)(2) above), or a disease with a clear and specific etiology and diagnosis ((b)(3) above), then please opine as to whether it is at least as likely as not (50 percent or greater probability) related to presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not (50 percent or greater probability) that any diagnosed sleeping disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of service, including but not limited to environmental exposures during service in Southwest Asia? The examiner is asked to specifically discuss the Veteran’s post-deployment responses and report of medical history reporting sleep issues. The examiner must provide a rationale for any and all opinions expressed, which should be set forth in a legible report. If an opinion cannot be rendered without resorting to speculation, that should be explained. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.