Citation Nr: 21029081 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-27 757 DATE: May 12, 2021 ORDER New and material evidence having not been received, the claim of entitlement service connection for the right knee disability is not reopened. The appeal for service connection for a right hip disorder (claimed as arthritis in the hip) is denied. A separate 10 percent rating for scars associated with the left wrist disability is granted from March 13, 2013, subject to the laws and regulations governing payment of monetary benefits. REMANDED The appeal for an initial rating greater than 20 percent for left wrist, carpal tunnel syndrome, is remanded. The appeal for a rating greater than 10 percent for scars associated with the left wrist disability, is remanded. The appeal for service connection for a left thumb disorder is remanded. The appeal for service connection for a low back disorder is remanded. The appeal for service connection for a cervical spine disorder is remanded. The appeal for service connection for a right leg disorder (claimed as a hairline fracture in right leg), is remanded. The appeal for service connection for a left ankle disorder is remanded. The appeal for service connection for a sleep disorder, to include sleep apnea, is remanded. FINDINGS OF FACT 1. In an August 2009 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for a right knee disorder. The Veteran did not file a notice of disagreement with the decision or submit new and material evidence within one year of the denial. 2. Evidence received since the final August 2009 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee disorder. 3. It is not shown that the appellant was on "active service" (i.e. active duty, active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) at the time of the event in which the Veteran injured his right hip. 4. The Veteran has painful scars associated with surgeries for the service-connected left wrist disability. CONCLUSIONS OF LAW 1. The AOJ's August 2009 rating decision denying service connection for a right knee disorder is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2020). 2. New and material evidence has not been received to reopen the Veteran's claim for service connection for a right knee disorder. 38 U.S.C. § 1110, 5108 (West 2012); 38 C.F.R. §§ 3.303, 3.156 (2020). 3. The criteria for service connection for a right hip disorder are not met. 38 U.S.C. §§ 101, 1110, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.304 (2020). 4. The criteria for a rating of 10 percent for scars associated with the service-connected left wrist disability, are met from March 13, 2013. 38 U.S.C. § 5110 (b)(3) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, DC 7804 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1979 to September 1983 as well as service in the U.S. Army Reserve and Army National Guard. In September 2020, the Veteran presented testimony during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. During the Veteran's hearing before the Board, the Veteran indicated that he had claimed entitlement to service connection for a right thumb disorder. The Board observes that the service-connection claim for a right thumb disorder was denied in the June 2012 rating decision. The Veteran filed a timely notice of disagreement with all of the decisions in June 2012 rating decision. However, in a DRO Post-Conference Brief filed by the Veteran's former representative dated December 16, 2013 (and received on December 18, 2013), the Veteran requested that his appeal for entitlement to service connection for a right thumb disorder be withdrawn. The agency of original jurisdiction (AOJ) notified the Veteran that it was honoring his request to withdraw the issue (among others) in a March 2, 2017 letter, and informed that it will be discontinuing the Veteran's claim. Because the Veteran withdrew his notice of disagreement with the AOJ's denial of entitlement to service connection for a right thumb disorder in December 2013, the Board has no jurisdiction to take the issue up anew at this juncture. The Veteran is invited to file a Supplemental Claim on the form prescribed by the Secretary if he wishes VA to consider the issue again. Claim to reopen Whether new and material evidence was received to reopen a claim for service connection for a right knee disorder. By a decision entered in August 2009, the AOJ denied the Veteran's claim for service connection for a right knee disability because the AOJ found no relationship between the in-service right knee diagnosis of mild chondromalacia of the right knee and post-service right knee diagnosis of patellar tendon rupture. The Veteran did not appeal, no new and material evidence was received within a year of the rating decision, and the decision became final. 38 C.F.R. § 3.156(b). Accordingly, the claims may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudications. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). For claims to reopen filed on or after August 29, 2001, such as the Veteran's, evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a "reasonable possibility of substantiating the claim" should be considered a component of what constitutes new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has also held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. Since the August 2009 rating decision, private and VA treatment records were added to the record as well as written statements and sworn testimony before the Board. The Veteran's statements and reports regarding continuity of knee symptomatology since service, are duplicative of arguments before the AOJ at the time of the August 2009 rating decision. Although the treatment records added to the file are new, they are not material as none of the new records indicates a relationship between the diagnosis in service and the post-service right knee disorder. Service personnel records were added to the file following the August 2009 rating decision; however, these records were not treatment records and did not indicate any additional information regarding the Veteran's right knee. Service treatment records documenting mild chondromalacia were already of record at the time of the August 2009 rating decision. As such, the provisions of 38 C.F.R. § 3.156(c) are not for application in this case. Social Security Administration records were also added to the record after the August 2009 rating decision, but the records do not pertain to the right knee disorder. In this regard, the records concern the Veteran's back disorders and carpal tunnel syndrome. Thus, the Board finds the records, although new, are not material to the claim. The Board acknowledges that the Veteran reported that his right knee was aggravated by the post-service injury in which a ditch caved in on his right leg and also injured his right hip. As discussed below, although the Veteran was a member of the Army National Guard at the time of the ditch caving in, because he was not called up to active Federal service at the time of the injury, service connection is not warranted for residuals of the injury. Notably, the Veteran acknowledged that the injury occurred while working on his civilian job. Transcript page 24. Thus, the Board finds the Veteran's statements regarding aggravation of the right knee disorder due to the event, to be not material. Accordingly, as the Veteran has not submitted evidence that meets the threshold of both new and material, there is no basis to reopen the claim and the request to reopen must be denied. Service Connection Entitlement to service connection for a right hip disorder (claimed as arthritis in the hip). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To warrant service connection, a claimed disability must have been incurred in or aggravated by active military service (or be secondary to a service-connected disability). 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303, 3.310. The term "active service" includes active duty, any period of ACDUTRA in which the individual concerned was disabled or died from a disease or injury incurred in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24). The term "active duty for training" includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C. § 101(22)(C). The term "inactive duty training" includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C. § 101(23). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts entitlement to service connection for a right hip disorder due to an event that occurred during the period of time in which he was a member of the Army National Guard. The Veteran described the injury to the right hip as occurring when a ditch caved in on him. Significantly, the Veteran offered sworn testimony that the incident occurred while he was at work on his civilian job. He acknowledged that he was not serving on a period of active duty for training or inactive duty for training at the time of the right hip injury. The Veteran asserts that because he was a member of the Army National Guard at the time of the injury to the right hip, any current residuals of the injury should be service connected. Crucially however, based on the definition of "active service" listed above, the Board finds that mere membership in the Army National Guard does not authorize an award of disability compensation for any disease or injury incurred while a member. National Guard duty is distinguishable from other Reserve service in that a member of the Army National Guard may be called to duty by the governor of their state. Members of the Army National Guard only serve the Federal military when they are formally called into the military service of the United States and at all other times, National Guard members serve solely as members of the State militia under the command of a state governor. Allen v. Nicholson, 21 Vet. App. 54 (2007). Therefore, to have basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, or must have performed full-time duty under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 10 U.S.C. § 12401. During that Federalized service, an injury or disease must have been incurred. Such was simply not the case with the Veteran in this case when he was injured during an event that occurred while working on his civilian job. While the Board sympathizes with the Veteran, the Board must adhere to the laws and regulations pertaining to eligibility for benefits. The Board finds that the Veteran's current disability is related to an event that occurred while the Veteran was not on active duty. Accordingly, the Veteran's claim for service connection for a right hip disorder lacks legal merit, and such claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Increased Rating Service connection for the left wrist disability was initially granted in the June 2012 rating decision. The Veteran appealed the initial rating assigned. During the pendency of the appeal regarding the initial rating, the Veteran underwent two surgeries on the service-connected left wrist. In a May 2017 rating decision, granted a separate noncompensable rating for the surgical scar, effective in December 2015. At his hearing before the Board, in connection with his pending claim for an increased rating for his left wrist disability, the Veteran discussed pain associated with his surgical scar. For the reasons explained below, the Board is able to grant a separate compensable rating for associated scarring on the left wrist effective March 13, 2013. Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 38 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the former version of the diagnostic codes only; however, for the period beginning August 13, 2018 the Board will consider both the old and amended version of the diagnostic codes and consider whichever is most favorable to the Veteran. Diagnostic Code 7800 deals with scars of the head, face, or neck and is not applicable to this claim. Diagnostic Code 7801 provides for a 10 percent disability evaluation for a scar that is not of the head, face, or neck, that is deep and nonlinear (former code) or associated with underlying soft tissue damage (amended code), and that has an area of at least 6 square inches (39 sq. cm.). Higher ratings are available if larger areas are affected. Under the former code, a "deep scar" is defined as one associated with underlying soft tissue damage. Diagnostic Code 7802 provides for a 10 percent disability evaluation for a scar not of the head, face, or neck, that is superficial and nonlinear (former code) or not associated with underlying soft tissue damage (amended code) and which covers an area of at least 144 square inches (929 sq. cm.) or more. Under the former code, a "superficial scar" is defined as one not associated with underlying soft tissue damage. Under both the former and amended criteria, Diagnostic Code 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent disability evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent disability evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. If one or more scars are both unstable and painful 10 percent is added to the evaluation. Under both the former and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7801 to 7804. In this case, the Veteran was afforded a VA examination in December 2015 for the left wrist disability, which included discussion of associated scarring. The examiner noted that the Veteran had scars related to the left wrist disability but that they were not painful or unstable, or larger than 39 square centimeters. However, during the September 2020 hearing before the Board, the Veteran offered sworn testimony that his left wrist scar was tender to the touch, and gets irritated at times. Transcript page 8. The Board finds the Veteran's statements to be credible. Based on the above, the Board finds the evidence is at least in equipoise that the Veteran has painful scarring, which warrants a 10 percent disability rating. Moreover, the Board finds that the separate 10 percent disability rating is warranted from May 13, 2013, the date of the Veteran's first left carpal tunnel release surgery. To the extent that the Veteran asserts he is entitled to a rating greater than 10 percent for scars, the claim is remanded below for consideration by the AOJ. REASONS FOR REMAND 1. Entitlement to an initial rating greater than 20 percent for left wrist, carpal tunnel syndrome. 2. Entitlement to a rating greater than 10 percent for scarring associated with the left wrist carpal tunnel disability. At his hearing before the Board, the Veteran and his representative specifically requested that the Board remand the Veteran's appeal for a higher disability rating for left wrist carpal tunnel syndrome for a new and updated assessment, based on assertions of worsening symptoms since the disability was last examined. After review of the record, the Board agrees that such is needed to make an informed decision on the issue on appeal. On remand, the Veteran should be scheduled for a updated examination. 3. Entitlement to service connection for a left thumb disorder. The Veteran has a current diagnosis of a left thumb strain. He reported that he believes his left thumb disorder was caused or aggravated by his service-connected left wrist carpal tunnel syndrome. See Transcript page 11. He indicated that medical professionals have told him that his thumb disorder was part of his carpal tunnel syndrome. He was provided with a VA examination in February 2012. At that time, the examiner only addressed the claim on a direct basis. As there is an indication that there may be a relationship between the Veteran's left thumb disorder and his service-connected left wrist disability, a remand is required to address whether the Veteran's left thumb disorder was caused or aggravated by his service-connected left wrist disability. 4. Entitlement to service connection for a low back disorder is remanded. 5. Entitlement to service connection for a cervical spine disorder is remanded. VA treatment records indicate current diagnoses of degenerative disc disease in both the lumbar and cervical spines. During the hearing before the Board, the Veteran offered sworn testimony that he worked as a mechanic in service and frequently had to lift heavy items such as engines, which resulted in wear and tear of the back and neck. See Transcript page He also offered sworn testimony that he has experienced neck and back pain since service. Transcript page 19. Private treatment records indicate neck and pain following a motor vehicle accident. See e.g. private treatment records dated in August 2014 and November 2014. As the Veteran has offered competent statements of wear and tear to the neck and back in service, there is evidence of current disabilities in the lumbar and cervical spines, and competent statements of an indication that the current disabilities may have begun in service, the Veteran should be afforded a VA examination to address whether the current disabilities are due to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to service connection for a right leg disorder (claimed as a hairline fracture in right leg), is remanded. The claim was denied by the AOJ based on a finding that the Veteran did not have a current disorder. However, since the most recent adjudication, the United States Court of Appeals for the Federal Circuit held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran asserts that he injured his right leg during a weekend drill in 1988. He reported that he jumped down from a truck and twisted his right ankle. He reported that he went to a doctor the next day and was told that he had a hairline fracture. Transcript pages 27-28. There remains an open medical question as to whether the Veteran's complaints of right leg pain manifest in functional impairment, such that a current disability can be established. If so, given the Veteran's reports of continuity of pain symptoms since his reported injury, a nexus opinion must also be obtained. On remand, an appropriate examination should be scheduled. See McLendon, supra. 7. Entitlement to service connection for a left ankle disorder is remanded. The claim was denied by the AOJ, in pertinent part, based on a finding that the Veteran did not have a current disorder. However, as discussed above, since the most recent adjudication, the United States Court of Appeals for the Federal Circuit held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran asserts that he injured his left ankle playing basketball during a two-week active duty for training period in the Army National Guard. See Transcript page 25. The Veteran did not identify the specific year in which the left ankle disorder occurred; however, available personnel records confirm periods of active duty for training with the U.S. Army Reserve in 1986 and 1987. Service records also indicate that the Veteran served in the Army National Guard in 1989. The AOJ attempted to obtain the Veteran's treatment records from his period of service with the U.S. Army Reserve and Army National Guard but was unsuccessful. See March 2009 Formal Finding of Unavailability. In the March 2009 formal finding, the AOJ noted that it had requested the records in a May 2008 letter. Review of the file reveals the May 2008 letter was sent to the Department of Defense. The AOJ also sent a separate request to the local headquarters detachment for the National Guard. It appears that the AOJ only made one request to the two sources identified above. On remand, the AOJ should make further attempts to obtain any treatment records pertaining to the period in which the Veteran served in the U.S. Army Reserve and the Army National Guard. VA's statutory duty to assist includes making as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including a VA medical facility and the service department. VA may only end its efforts to obtain such records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). Thus, upon remand, appropriate efforts should be taken to obtain any and all outstanding medical records in Federal possession. In the event these efforts are unsuccessful, the AOJ must comply with the procedures set forth in 38 C.F.R. § 3.159(e). Further, the Veteran is competent to report having injured his left ankle while playing basketball during a two-week active duty for training period. The Veteran has also indicated continuity of left ankle symptoms since service. As there is an indication that the Veteran's current left ankle pain may have begun in service, a remand for a VA examination is required. See McLendon, supra. 8. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. VA treatment records indicate that the Veteran has a current diagnosis of sleep apnea. The Veteran asserts that he also has a sleep disorder apart from sleep apnea because he wakes every night despite use of the CPAP machine. With respect to sleep apnea, the Veteran offered sworn testimony that fellow service members woke him frequently in service to tell him that he was snoring and/or stopped breathing. Transcript pages 31- 34. He also indicated that he believes his symptoms have continued since service. In addition to sleep apnea, the Veteran reported that pain due to his orthopedic and his carpal tunnel disabilities, frequently awakened him at night, even when he was using with a CPAP machine. As there is a diagnosis of sleep apnea, as well as an indication of another possible sleep disorder, and evidence suggesting sleep disturbances in service and continuing since service, a remand for a VA examination or opinion is required. See McLendon, supra. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated since August 2020. 2. The AOJ should contact the appropriate repository of record and attempt to obtain medical treatment records pertaining to the Veteran's periods of service in the U.S. Army Reserve as well as the Army National Guard. All records obtained should be associated with the Veteran's claims file. All efforts to obtain such records and all responses received are to be associated with the Veteran's claims file. The AOJ must only end its efforts to obtain these records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. A lack of response, alone, is not a sufficient basis to determine that the records sought do not exist or that further efforts to obtain the records would be futile. In the event the AOJ is unable to obtain these records, the appellant must be notified in accordance with 38 C.F.R. § 3.159(e). All efforts must be documented in the record. 3. Following completion of item 1, schedule the Veteran for an examination to assess the nature and severity of his service-connected left wrist carpal tunnel syndrome, and associated surgical scars. 4. Following completion of items 1 and 2, schedule the Veteran for an examination to assess the nature and etiology of his claimed left thumb disorder. The electronic claims file should be reviewed by the VA examiner. The examiner should take a history from the Veteran as to the progression of his symptoms. Following review of the entire electronic file, the examiner is asked to address the following: (a.) Identify all disabilities affecting the left thumb. The examiner is advised that a disability exists for VA purposes if joint pain results in functional impairment. (b.) For each disability identified, is it at least as likely as not (a 50 percent probability or higher) that such had onset in, or is otherwise related to service? (c.) Notwithstanding the above, is it at least as likely as not (a 50 percent probability or higher) that any left thumb disability was caused or aggravated by service-connected left wrist carpal tunnel syndrome? (d.) Complete rationale must be offered for any opinion rendered. 5. Following completion of items 1 and 2, schedule the Veteran for an examination to assess the nature and etiology of his claimed lumbar and cervical spine disorders. The electronic claims file should be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his symptoms. Following review of the entire electronic file, the examiner is asked to address the following: (a.) Identify all disabilities affecting the lumbar and cervical spines. The examiner is advised that a disability exists for VA purposes if joint pain results in functional impairment. (b.) For each disability identified, is it at least as likely as not (a 50 percent probability or higher) that such had onset in, or is otherwise related to service, to specifically include wear and tear on the neck and back in performance of lifting duties during service? (c.) Complete rationale must be offered for any opinion rendered. 6. Following completion of items 1 and 2, schedule the Veteran for an examination to assess the nature and etiology of his claimed right leg disorder. The electronic claims file should be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his symptoms. Following review of the entire electronic file, the examiner is asked to address the following: (a.) Identify all disabilities affecting the right leg. The examiner is advised that a disability exists for VA purposes if joint pain results in functional impairment. (b.) For each disability identified, is it at least as likely as not (a 50 percent probability or higher) that such had onset in, or is otherwise related to service? (c.) Complete rationale must be offered for any opinion rendered. 7. Following completion of items 1 and 2, schedule the Veteran for an examination to assess the nature and etiology of his claimed left ankle disorder. The electronic claims file should be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his symptoms. Following review of the entire electronic file, the examiner is asked to address the following: (a.) Identify all disabilities affecting the left ankle. The examiner is advised that a disability exists for VA purposes if joint pain results in functional impairment. (b.) For each disability identified, is it at least as likely as not (a 50 percent probability or higher) that such had onset in, or is otherwise related to service? (c.) Complete rationale must be offered for any opinion rendered. 8. Following completion of items 1 and 2, schedule the Veteran for an examination to assess the nature and etiology of his claimed sleep disorders, to include sleep apnea. The electronic claims file should be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his symptoms. Following review of the entire electronic file, the examiner is asked to address the following: (a.) Identify all sleep disorders. Consider the records that indicate a diagnosis of sleep apnea, as well as the Veteran's statement that he wakes with pain every night even though he uses a CPAP machine. (b.) For each disability identified, is it at least as likely as not (a 50 percent probability or higher) that such had onset in, or is otherwise related to service? Consider the Veteran's statements that his fellow service members used to wake him up while he snored and tell him that it sounded like he had stopped breathing in his sleep. (c.) Complete rationale must be offered for any opinion rendered. 9. Then, readjudicate the issues on appeal with consideration of all the evidence of record. If any benefit remains denied, send the Veteran and his representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.