Citation Nr: 21028804 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-44 037A DATE: May 12, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND This case was previously before the Board in June 2018 and December 2019. Most recently, the Board denied service connection for sleep apnea and a left knee disability. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated the Board's December 2019 decision. The matter has now been returned to the Board for further appellate action. In light of the Joint Motion, a remand is necessary. The parties agreed that the Board erred by failing to provide adequate reasons and bases for its denial of service connection. Remand is warranted to conduct a new search for the Veteran's service treatment records. The record contains a March 2011 formal finding of unavailability for the Veteran's service records. In its December 2019 decision, the Board erroneously concluded that the service treatment record (STR) was complete. Consequently, the Joint Motion instructs the Board to determine anew whether there are outstanding STRs. Additionally, the record raises theories of entitlement for service connection for sleep apnea which require further development. First, the Veteran contends that his claim of entitlement to sleep apnea should be recharacterized as a claim of entitlement to service connection for a sleep disorder, to include sleep apnea and insomnia. The Board acknowledges that throughout the pendency of the claim, the Veteran's has consistently reported that he wakes up coughing or choking and consequently has trouble sleeping, irregular sleep patterns, as well as difficulty falling back asleep. The Veteran's treatment records support a diagnosis of insomnia. The Board acknowledges that the U.S. Court of Appeals for Veterans Claims has held that when a veteran claims service connection, he or she is not claiming service connection for a specific diagnosis but for his or her symptoms regardless of the diagnosis, and the claim encompasses the underlying condition regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). As such, the Board must consider whether service connection may be granted for conditions other than sleep apnea. Finally, the Veteran contends that his disordered sleeping is related to his service during the Gulf War. The Veteran underwent a Gulf War examination in May 2011. The examiner noted complaints of insomnia. However, the Board cannot make a fully-informed decision because no VA examiner has opined whether the Veteran's insomnia is a symptoms of an undiagnosed illness. Nor has any examiner opined as to any relationship between the Veteran's disordered sleeping and his service in Saudi Arabia. The matters are REMANDED for the following action: 1. The AOJ should secure any outstanding, relevant VA medical records and request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his sleep disorder and left knee disability 2. The AOJ should verify whether the Veteran's service records remain unavailable. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. Thereafter, provide the Veteran with a new VA examination for sleep disorders. The examiner should review the claims folder and acknowledge such review. Following a review of the claims file, the reviewing examiner is requested to: Specifically discuss whether the Veteran has a current diagnosis of insomnia. For all diagnosed sleep conditions, the examiner is asked to provide a response as to whether it is at least as likely as not that the Veteran's sleep disorder is related to his active duty service to include his service in the Southwest Asia theatre of operations during the Gulf War. The examiner should provide a complete rationale for the opinions, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. The examiner must specifically address the competent lay evidence of record, including the Veteran's lay statements. The Veteran is competent to attest to observable symptoms such difficulty sleeping, waking during the night, and choking. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Upon completion of the above development, the AOJ should readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.