Citation Nr: 22008090 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 18-40 915 DATE: February 11, 2022 REMANDED A claim of entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 2000 to July 2004, to include service in support of Operation Iraqi Freedom/Enduring Freedom. In January 2021, he testified before the undersigned Veterans Law Judge (VLJ) in support of his claim. The Veteran currently has a combined disability rating of 90 percent. SERVICE CONNECTION FOR SLEEP APNEA In this appeal, the Veteran seeks service connection for sleep apnea based on the theory that he developed this condition secondary to his exposure to burn pits and other hazardous conditions while serving in Iraq/Kuwait. Regarding this theory, the Veteran reported during a March 2017 Decision Review Officer (DRO) Informal Conference that he snored frequently and loudly during service. He reported that he occasionally had to sleep outside on top of his truck and his fellow soldiers made remarks about his snoring. The Veteran's implicit assertion is that his snoring in service was the initial manifestations of his sleep apnea. The RO denied this theory of entitlement to service connection in a May 2015 rating decision. The Veteran was not afforded a VA examination prior to the denial of his claim. The Veteran's alternative theory of entitlement to service connection is that his nonservice-connected sleep apnea is aggravated by his service-connected posttraumatic stress disorder. The Board's review of the Veteran's service treatment records failed to reveal any documented complaints, treatment for, symptomatology related to, or a diagnosis of sleep apnea. After issuance of the May 2015 rating decision on appeal, the Veteran submitted statements from two men who served with him in the Army. The first, M.M., reported that while on deployment in 2003, he and the Veteran slept in the same tent with the rest of their squad. He noticed that the Veteran began to snore very loudly, would hear him regularly gasping for air in his sleep as if he were choking, and stated that there were times the Veteran stopped breathing while snoring. Another co-serviceman, T.S., provided a statement in which he seems to indicate that he knew the Veteran in service prior to their both being deployed. See April 2017 statement from T.S. ("We were roommates at one point before deployment"). The Veteran and T.S. were apparently deployed together and subsequently slept in the same tent. T.S. reported that he noticed the Veteran's sleep pattern change during deployment and that he started to snore loudly. He indicated that the Veteran's snoring became worse after they returned to the U.S.; and at some point, the Veteran would stop breathing. In addition, the Veteran submitted a statement from his spouse N.B., who indicated she is a registered nurse. N.B. stated that she remembered the time before the Veteran was shipped overseas. She reported that the Veteran never snored prior to deployment and had no issues with his lung function. She stated that after he returned from overseas, she noticed that the Veteran not only experienced snoring and sleep apnea but also suffered from severe dyspnea that required the use of a rescue inhaler. In a June 2018 Statement of the Case, the Agency of Original Jurisdiction (AOJ) continued to deny the Veteran's sleep apnea claim on the basis that the Veteran's service treatment records and post-service evidence were more credible than the lay statements provided by the Veteran; and that this evidence contradicted the Veteran's statements of a connection between service and his sleep apnea. The Board disagrees with the AOJ's June 2018 determination to deny the Veteran's claim based upon the current evidence of record. The lay statements referenced above clearly raise the medical question of whether the Veteran's snoring and breathing problems in service are related to his post-service diagnosis of sleep apnea. Therefore, a remand for medical guidance is warranted. For the record, the Board's decision to remand is supported by the post-service medical records in the claims file. Although the AOJ correctly noted that the Veteran's first complaints specifically of sleep apnea are document in post-service medical records dated in June 2010, the Veteran reported during his March 2017 DRO Informal Conference that he believed he was first diagnosed with sleep apnea sometime around 2005. Post-service medical records in the claims file are dated from 2004 to 2020. However, the bulk of the medical records are dated after 2010. Only three of the Veteran's post-service records are dated in 2004, specifically in August 2004 and November 2004. They indicate that the Veteran returned to live in New Orleans, Louisiana after his discharge from service to be with family; and that the Veteran's significant other reported (in the context of a visit for a separate condition) that the Veteran was having "sleep disturbances [the Veteran] reports he is unaware of." There are no medical records dated in 2005 or 2006 in the claims file. The records then jump from November 2004 to June 2007, with only one record dated in June 2007. There are no records dated in 2008 or 2009. The records in the claims file then jump again from 2007 to 2010. The first 2010 medical record in the claims file appears to be dated June 2, 2010, and it documents the Veteran reestablishing medical care with the New Orleans, Louisiana VA Medical Center. During this initial visit, the Veteran provided a history of having sleep apnea. The record reflects that the Veteran "had test with private MD, had CT, no sleep study, observed to stop breathing while asleep, multiple awakenings at night, daytime fatigue." Subsequent records dated in June 2010 indicate that the Veteran's main sleep complaints were that he "[stopped] breathing when sleeping, snoring, [and] gasping for air." The Veteran was diagnosed by VA with sleep apnea in August 2010 after undergoing a sleep study. He was provided with a PAP (positive airway pressure) unit. December 2010 records appear to indicate that the Veteran's snoring ceased in response to his using his PAP machine. Clearly, the post-service medical evidence cited above supports the Board's finding that additional development is warranted in this case. The appeal is therefore remanded to afford the Veteran a VA medical nexus examination. The matter is REMANDED for the following actions: 1. After reviewing this remand in full, schedule the Veteran for a VA examination with an appropriately qualified medical professional for his sleep apnea condition. The examiner must review this remand in full, in addition to completely reviewing the claims file. The examiner should be directed to assume for the sake of this opinion that the lay statements of record are credible (i.e., that the Veteran was observed as not snoring loudly prior to his deployment but was observed as snoring loudly in service, etc.). However, in doing so, the examiner should consider the description of the Veteran's in-service symptoms (i.e., snoring, etc.) as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his sleep apnea, this should be stated. Stated another way, do the Veteran's reports about his symptoms align with how his sleep apnea is known to develop or are the Veteran's reports generally inconsistent with medical knowledge? The examiner is asked to provide responses to the following: Did the Veteran's sleep apnea at least as likely as not manifest in service, to include as being the result of the Veteran's exposure to burn pits and/or other hazardous conditions while serving in Iraq/Kuwait? Is the Veteran's sleep apnea at least as likely as not proximately due to his service-connected posttraumatic stress disorder? Has the Veteran's sleep apnea at least as likely as not been aggravated (i.e., worsened beyond its natural progression) by his service-connected posttraumatic stress disorder? The examiner should provide a rationale to support the requested opinions. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Talpins 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.