Citation Nr: 21022701 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-21 937 DATE: April 19, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active military service from August 2006 to December 2009. In September 2014, the Veteran filed a claim for sleep apnea. The Veteran contends that sleep apnea arose during active service. Following a January 2015 VA examination, the Agency of Original Jurisdiction (AOJ) denied his claim in February 2015 because the evidence did not show an event, disease, or injury in service. In May 2015, the Veteran filed another claim seeking service connection for sleep apnea, and the AOJ subsequently reopened his claim, which was once again denied in an August 2015 rating decision. The Veteran’s appeal was most recently before the Board in November 2018. The Board issued a remand and directed the AOJ to contact the Veteran to identify all health care providers who treated him for sleep apnea. The Board also directed the AOJ to obtain the records from the Veteran’s November 2014 sleep study and to schedule a VA examination to determine the nature and etiology of the Veteran’s sleep apnea. The AOJ subsequently requested the relevant information from the Veteran in August 2019. To date, the Veteran has not responded or provided the requested information. The AOJ obtained the November 2014 sleep study records and the Veteran received a VA examination for sleep apnea in October 2019. The Veteran’s claim is once again before the Board. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that he is entitled to service connection for sleep apnea. In his May 2015 statement, the Veteran asserted that his sleep issues began during active service. His statement explained that he has struggled with sleep since 2007 and received medical treatment for his sleep issues in 2008. VA has the duty to assist veterans in obtaining evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A. VA’s duty to assist the Veteran in developing his claim includes requesting and obtaining records that have a reasonable possibility of being related to his claim for benefits. See 38 U.S.C. § 5130A; see also 38 C.F.R. § 3.159(c). Among other types of records, VA must obtain the Veteran’s service treatment records, service personnel records, and other relevant records pertaining to the Veteran’s active service. See 38 U.S.C. § 5103A(c)(1). Based on its review of the Veteran’s claims file, the Board finds that complete service treatment records and military personnel records have not been obtained. The AOJ requested the Veteran’s service treatment records, and those records are in his claims file. However, in an October 2019 VA examination, the VA examiner referenced records from a December 2008 visit for mental health services in which the Veteran was diagnosed with insomnia. Records of this December 2008 visit are not included in the Veteran’s service treatment records. The examiner also indicated that he had reviewed copies of the Veteran’s service discharge examination and post-deployment assessment, neither of which are of record. Therefore, the VA examiner’s report indicates that the Veteran’s service treatment records are incomplete. The Veteran’s complete service treatment records would allow the examiner to compare the Veteran’s weight upon entering the service with his weight at discharge. Evidence relating to the Veteran’s weight during active service is relevant given the VA examiner’s emphasis on the relationship between the Veteran’s weight and his sleep apnea diagnosis. Thus, these records may help establish whether the Veteran’s sleep apnea began during active service despite the lack of an official sleep apnea diagnosis until after the Veteran separated from service. A request for the Veteran’s personnel records is not included in his claims file. His military personnel records may contain evidence pertinent to the Veteran’s claim, including counseling for any weight gain that may have occurred during active service. Because the record indicates that the Veteran’s service treatment records and military personnel records are incomplete, his claim must be remanded to correct duty to assist errors. See 38 U.S.C. § 5103A. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service treatment records. The AOJ should also obtain the Veteran’s complete military personnel records. 2. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for any sleep problems, to include sleep apnea. If the Veteran has access to his service treatment records, post-service medical records, or any other evidence that may support his claim, he should be notified that he may submit those as well. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. 3. After undertaking the development directed above, obtain an addendum opinion from the examiner responsible for the October 2019 VA examination report. The Veteran’s claims file must be made available to the examiner. If the same examiner is not available, the request should be forwarded to another clinician. If any examiner deems necessary, an in-person examination should be scheduled for the Veteran. This addendum opinion should address whether it is at least likely than not (a 50 percent probability or greater) that the Veteran’s sleep apnea had its onset during or is otherwise etiologically related to active service. The examiner should consider the Veteran’s report of sleep problems during active service and any documented treatment related thereto. The examiner should also address clinical significance, if any, of weight gain that occurred during active service. Specifically, given the identified relationship between weight gain and sleep apnea, did the Veteran’s in-service report of sleep problems and weight gain represent the initial manifestations of his sleep apnea? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M. Sachs, 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.