Citation Nr: 1416045 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 08-22 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a heart disability, claimed as a heart murmur. 2. Entitlement to service connection for insomnia. 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1995 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is associated with the claims file. This matter was remanded by the Board in May 2012 for further development. The Veteran also perfected an appeal of the issue of entitlement to service connection for a right hand disability, which was also remanded by the Board in May 2012. However, in a November 2012 decision, the RO granted service connection for cold injury residuals of the right and left hands. As this decision represents a full grant of the benefit sought, the issue of entitlement to service connection for a right hand disability is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The Virtual VA paperless claims processing system contains a March 2014 appellate brief, and treatment records from the Montgomery VA Medical Center dated February 2006 to August 2012. Other documents contained in Virtual VA are not relevant to the issues currently before the Board, or are duplicative of the evidence of record. The Veterans Benefits Management System (VBMS) does not include any relevant documents. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board again finds that further development is necessary, and the Veteran's claims must again be remanded. These claims were remanded by the Board in May 2012 to obtain outstanding service treatment records regarding evaluation of the Veteran's heart, VA treatment records including of any sleep study performed, and to afford the Veteran VA examinations. Heart Disability Specifically, the Board asked that a VA examiner determine the diagnosis of any current heart condition, and determine the nature and etiology of any current heart disability, to include whether any disability or congenital heart condition was aggravated in service. The Board finds that the August 2012 VA examiner's opinion is inadequate for purposes of deciding this claim, as the VA examiner did not clearly address whether there is any diagnosis of a current heart condition. The VA heart examiner listed in the Disability Benefits Questionnaire (DBQ) that a heart murmur, tricuspid regurgitation had been diagnosed in 1971. The examiner also indicated that the Veteran had more than four episodes of an intermittent arrhythmia in the past twelve months, but in indicating how these episodes were documented, stated, "Stress test was performed [in service] which was [within normal limits]. He was not profiled after the stress test." It is unclear from this entry whether the examiner was indicating the Veteran currently has an arrhythmia, had an arrhythmia during service, or whether the VA examiner was indicating that no arrhythmia is shown or was shown during service. The Veteran testified at his March 2012 videoconference hearing that during service he was told that his heart murmur had become an atrial flutter because the hole had closed. However, the Veteran's service treatment records and VA treatment records do not contain a diagnosis of either an atrial flutter or any arrhythmia. A May 2000 service treatment record stated the Veteran complain of atypical chest pain and heart palpitations, and a Holter test was ordered to rule out arrhythmia. Although service treatment records for the year 2000 from the Darnell Army Community Hospital have been obtained and associated with the claims file per the Board's May 2012 remand instructions, these records do not include the results of the Veteran's Holter monitor testing, or any other evaluation of the Veteran's heart, to include any diagnosis of an arrhythmia or flutter. The August 2012 examination report states that a June 2012 EKG was normal, as was a June 2012 chest x-ray and June 2012 echocardiogram. However, the report for the June 2012 echocardiogram states there was a trace/mild tricuspid valve regurgitation. The August 2012 VA examiner opined that the Veteran's heart murmur condition diagnosed at birth clearly existed prior to service, was a congenital defect that did not warrant treatment in service, did not currently require treatment, and that it clearly did not undergo an increase in service as evidenced by the Veteran's normal echocardiogram and exercise GXT performed during service. The examiner further opined, "No current heart disease or disability initially manifested during the Veteran's active military service." However, the examiner noted that upon the Veteran's May 2000 echocardiogram in service, mild tricuspid regurgitation was shown. The August 2012 VA examiner did not address or comment upon the tricuspid regurgitation found both during service and upon VA examination, to include whether it is a currently diagnosed heart condition, and whether it is a separately diagnosed condition, or associated with the Veteran's congenital heart murmur (as the examiner listed it with the heart murmur as being diagnosed in 1971). The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, on remand the RO or AMC should obtain an addendum opinion from the August 2012 VA examiner to address: whether the Veteran has a currently diagnosed heart condition, to include tricuspid regurgitation; if so, whether the current diagnosis is considered a congenital disease or defect to include whether it is associated with the Veteran's heart murmur; whether the diagnosis clearly preexisted the Veteran's service and if so, whether it clearly did not undergo an increase in service; and if it did not preexist service, whether the current diagnosis is etiologically related to the Veteran's active duty service. Further, in a March 2014 appellate brief, the Veteran's representative stated that the Veteran has been prescribed Diclofenac for pain and inflammation associated with his service-connected disabilities, and included two articles discussing that this medication has a positive association with heart arrhythmias and atrial fibrillation or flutter. The Veteran's VA treatment records show that the Veteran has been prescribed Diclofenac for pain and inflammation. See, e.g., May 2010 Nursing Clinic Note (listed among active outpatient medications). As such, an addendum opinion from the August 2012 VA examiner is also required to address service connection of any current heart condition on a secondary basis. Sleep Apnea and Insomnia At the March 2012 videoconference hearing, the Veteran's representative stated that the Veteran was being scheduled for a sleep study. In the May 2012 remand, the Board instructed the RO to obtain all outstanding VA treatment records. Upon examination in August 2012, the VA examiner stated that no sleep study had been performed. However, in an April 2012 VA Primary Care Physician Note, the physician noted, "Sleep survey done." No record of any sleep survey or study is of record. In an April 2009 VA pulmonary consultation, the physician requested that a civilian sleep study be allowed in the Veteran's hometown. Therefore, if a sleep study or survey was performed, it may have been performed by a private practitioner. Further, on the August 2012 sleep apnea DBQ, the VA examiner marked that there were significant diagnostic test findings and/or results other than a sleep study, but did not list any tests, or their findings. On remand, the RO or AMC should obtain all outstanding treatment records for the Veteran, to include both VA and any private treatment records, including the results of any sleep study or survey performed in 2012, and any diagnostic testing performed upon or referenced by the August 2012 VA examiner. An addendum opinion should be obtained from the August 2012 VA examiner to address the etiology of any sleep disorder(s). The August 2012 VA examiner noted that no diagnosis of sleep apnea has been established, and opined that the Veteran's insomnia is related to his mental condition, to include posttraumatic stress disorder (PTSD). However, the VA examiner did not indicate whether the Veteran's insomnia is a symptom of the psychiatric disorder(s), to include PTSD, or whether is a separate disability caused or aggravated by the service-connected acquired psychiatric disorder(s). Accordingly, on remand the RO/AMC should obtain an addendum opinion from the August 2012 VA examiner to clarify any relationship between the Veteran's insomnia and his service-connected acquired psychiatric disorders. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the Veteran to identify all treatment and testing for any sleep disorder, to include insomnia and sleep apnea. The RO/AMC should obtain all identified private treatment records, to include any sleep study or surveys performed in 2012. The Veteran's assistance should be requested as needed. All outstanding VA treatment records should be obtained, to include records and findings of any diagnostic tests performed upon the August 2012 VA sleep apnea examination. All obtained records should be associated with the claims file. The RO/AMC must perform all necessary follow-up indicated. If the records are not available, the RO or AMC should make a formal finding of unavailability, advise the Veteran of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. After the above development has been completed, and after any records obtained have been associated with the claims file, obtain an addendum opinion from the August 2012 VA heart examiner. If the examiner is not available, obtain an opinion from another appropriate examiner to determine the nature and etiology of any current heart condition. The claims file, including a copy of this remand, and any pertinent Virtual VA records must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. After reviewing the claims folder and records, the examiner is asked to respond to the following inquiries: a) The examiner is asked to identify any currently diagnosed heart condition, and any heart condition diagnosed since November 2005. For the purposes of the opinion being sought, the examiner should specifically address the May 2000 and June 2012 echocardiograms showing tricuspid regurgitation, and indicate whether such is a separately diagnosed condition, or whether it is associated with the Veteran's congenital heart murmur. Further, the examiner should specifically identify whether an arrhythmia is, or has been, diagnosed. b) Indicate which, if any, of these conditions constitute a congenital disease, a congenital defect, or an acquired disease or injury. (The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defect" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature.) c) If the examiner determines that any heart disorder is a congenital defect, opine whether the Veteran now has additional disability due to an in-service disease or injury superimposed upon such defect. d) If the examiner determines that the Veteran's heart disorder is a congenital disease, opine whether the disability clearly and unmistakably existed prior to his active service and clearly and unmistakably underwent no permanent increase in severity as a result of active service. e) For any other heart disorder that is not congenital in nature and/or did not preexist service, opine as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that it originated during active duty or is in any other way causally related to his active duty service. For the purposes of the opinion being sought, the examiner should specifically address the Veteran's complaints of heart palpitations or a pounding heart in service, and his testimony that he was told in service his heart murmur had turned into an atrial flutter because the hole had closed. If the examiner determines the tricuspid regurgitation (TR) is a separately diagnosed disorder, the examiner should specifically address the May 2000 echocardiogram during service showing a mild TR, and the June 2012 echocardiogram upon VA examination showing a trace/mild TR. f) For any heart disorder that is not congenital in nature and/or did not preexist service, opine as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current heart condition was caused by his service-connected conditions, to include the medication Diclofenac prescribed for pain and inflammation. For the purposes of the opinion being sought, the examiner should specifically address the argument by the Veteran's representative, as well as the articles submitted with the March 2014 appellate brief, stating that Diclofenac has a positive association with heart rhythm problems. g) For any heart disorder that is not congenital in nature and/or did not preexist service, opine as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current heart condition has been aggravated by the Veteran's service-connected conditions, to include the medication Diclofenac prescribed for pain and inflammation. Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. If the examiner determines that the Veteran's heart condition is aggravated (i.e., permanently worsened) by the medication and/or his service-connected condition(s), the examiner, if possible, should identify the percentage of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 3. After #1 has been completed, and after any records obtained have been associated with the claims file, obtain an addendum opinion from the August 2012 VA sleep apnea examiner. If the examiner is not available, obtain an opinion from another appropriate examiner to determine the nature and etiology of any current sleep disorder. The claims file, including a copy of this remand, and any pertinent Virtual VA records must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. After reviewing the claims folder and records, the examiner is asked to respond to the following inquiries: a) The examiner is asked to identify any currently diagnosed sleep disorder, and any sleep disorder diagnosed since November 2005. For the purposes of the opinion being sought, the examiner should specifically address the Veteran's in-service and post-service complaints of and diagnoses of insomnia, and opine as to whether the insomnia is a separately diagnosed condition, or whether it is a symptom associated with the Veteran's service-connected acquired psychiatric disorders, to include PTSD. If sleep apnea is diagnosed, the examiner should specifically address whether the Veteran's documented insomnia is a symptom of or separate condition associated with the sleep apnea. b) For each diagnosed sleep disorder, the examiner should opine as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that it originated during active duty or is in any other way causally related to his active duty service. For the purposes of the opinion being sought, the examiner should specifically address the Veteran's complaints of insomnia and trouble sleeping during and since service. c) If the examiner determines the Veteran's insomnia is a separately diagnosed condition, the examiner should opine as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current insomnia was caused by his service-connected acquired psychiatric disorders, to include PTSD. d) If the examiner determines the Veteran's insomnia is a separately diagnosed condition, the examiner should opine as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current insomnia has been aggravated by his service-connected acquired psychiatric disorders, to include PTSD. Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. If the examiner determines that the Veteran's insomnia is aggravated (i.e., permanently worsened) by his acquired psychiatric disorder(s), the examiner, if possible, should identify the percentage of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). e) If the examiner diagnoses sleep apnea, the examiner should opine as to whether the Veteran's insomnia was caused by, or is aggravated by, his sleep apnea. The complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 4. The RO or AMC should undertake any further development it determines is necessary. 5. After the above development has been completed, adjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).