Citation Nr: 1134871 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 06-34 524A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for obstructive sleep apnea disorder, including as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran, who is the Appellant or claimant, had active service from December 1975 to December 1978 and from September 1979 to September 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which in relevant part, denied service connection for sleep apnea disorder and for hiatal hernia with gastro esophageal reflux. The Veteran disagreed with regard to both of these issues. In October 2006 the RO granted service connection for a hiatal hernia with gastro esophageal reflux disease, which represented a complete grant of that appeal. In November 2006, the Veteran perfected the appeal only for the issue of service connection for sleep apnea. The Veteran had indicated that he wanted a hearing before the Board via video-teleconference. The Veteran failed to appear for a scheduled hearing in January 2011; therefore, the request for a Board hearing is deemed waived. The issue of service connection for obstructive sleep apnea is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Board notes the VCAA notices sent to the Veteran in November 2003 and April 2010 notified him of only the evidence that pertained to direct service connection and did not include notice regarding secondary service connection provisions of 38 C.F.R. § 3.310(a) (2010). Notice of these regulations should be provided to the Veteran. Despite a thorough review of the Veteran's service treatment records, the Board did not find any complaints by the Veteran reporting snoring, difficulty sleeping, or daytime sleepiness, though two complaints in 1987 in service for treatment for a painful right knee and persistent coughing included the reports that these disorders kept him from sleeping. Nonetheless, the Veteran has made lay statements and submitted the statements, dated in 2006, of his wife and two affiants (identified as fellow soldiers) that the Veteran has for decades snored so loudly as to disturb others and keep them awake. That he had a long history of snoring was noted by the clinician in December 2002 of the service hospital where the Veteran was often treated as a retiree, when the Veteran sought treatment for snoring and difficulty sleeping. The February 2003 evaluation that assessed severe obstructive sleep apnea also referenced his history of snoring. The Veteran also submitted statements by his treating physician, though two copies of the same statement dated years apart, in which his treating physician wrote that sleep apnea often goes undiagnosed for years. See May 2010 and January 2006 statements. The Board observes this physician did not attribute the Veteran's sleep apnea to his service. As well, the first recorded complaint by the Veteran about increased snoring and some daytime somnolence in VA treatment reports is found in January 2002, when the Veteran sought a follow-up evaluation to his gastro esophageal reflux disease (GERD). The report noted the Veteran experienced the increased snoring after changing his medication to treat the GERD. The Veteran is now service connected for a hiatal hernia with GERD, so any symptoms or complications due to the use of the medication to treat GERD are to be attributed to the service-connected disability of GERD. The Board finds that an appropriate VA examination is necessary to obtain a nexus opinion that addresses all theories of entitlement, namely, whether the Veteran's now diagnosed obstructive sleep apnea is directly related to or caused by service, specifically the described history of snoring in service, and the secondary service connection theory as to whether the obstructive sleep apnea was caused or aggravated by the service-connected disabilities, in particular the hernia with GERD (including medication for GERD). Secondary service connection may be granted when a non-service-connected disability has been aggravated by a service-connected disability. The Veteran has the following service-connected disabilities: migraine headaches, gout, cervical spine and dorsal spine area pain, degenerative arthritis of the lumbar spine, hiatal hernia with GERD, residuals of incomplete fracture of the right scapula, granulomatous lung disease, hernia repair, lacerations scars, and genital herpes. Accordingly, the issue of service connection for obstructive sleep apnea disorder, including as secondary to service-connected disabilities, is REMANDED for the following action: 1. Issue a VCAA notice in accordance with 38 C.F.R. § 3.159 that addresses the theory of secondary service connection (38 C.F.R. §3.310) of the claimed obstructive sleep apnea disorder, as secondary to the Veteran's service-connected disabilities of migraine headaches, gout, cervical spine and dorsal spine area pain, degenerative arthritis of the lumbar spine, hiatal hernia with GERD (including medication for GERD), residuals of incomplete fracture of the right scapula, granulomatous lung disease, hernia repair, lacerations scars, and genital herpes. 2. Schedule the Veteran for a VA medical examination and opinion as to the nature and etiology of the obstructive sleep apnea disorder. All necessary tests and studies should be accomplished and all complaints and clinical manifestations should be reported in detail. The relevant documents in the claims folder should be reviewed in conjunction with the above evaluation, and the examination report should indicate that such review was performed. a). The examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's obstructive sleep apnea disorder is caused by or related to active service. b). The examiner is asked to give an opinion as to whether any current obstructive sleep apnea disorder has been caused or aggravated (permanently worsened in severity) by the Veteran's other service-connected disabilities: migraine headaches, gout, cervical spine and dorsal spine area pain, degenerative arthritis of the lumbar spine, hiatal hernia with GERD, residuals of incomplete fracture of the right scapula, granulomatous lung disease, hernia repair, lacerations scars, and genital herpes. 3. Thereafter, readjudicate the issue of service connection for obstructive sleep apnea disorder. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is also advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2010). 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. 2010). _________________________________________________ J. PARKER 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) (2010).