Citation Nr: 1104300 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 08-29 774A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Pansiri, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1984 to May 1992, during peacetime and the Persian Gulf War. He was awarded a Southwest Asia Service Medal with two bronze service stars, a Saudi Arabia Liberation Medal, and a Kuwait Liberation Medal for his service in Southwest Asia. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA), Nashville, Tennessee, Regional Office (RO), which determined that new and material evidence had been received to reopen the service connection claim for obstructive sleep apnea, but ultimately, denied service connection. The Veteran disagreed with such decision and subsequently perfected an appeal. The Board notes that the Veteran requested a hearing before a member of the Board sitting in Washington, D.C., and was notified that a hearing was scheduled for April 2010. See December 2009 Board Hearing Notification Letter; see also September 2009 "Appeal to the Board of Veterans Appeals," VA Form 9. The Veteran subsequently withdrew his hearing request. See March 2010 Letter from the Veteran's Representative. No further requests for hearings are of record. As such, the Board finds that the Veteran's hearing request is withdrawn. In April 2010, the Board determined that new and material evidence sufficient to reopen the Veteran's claim for entitlement to service connection for obstructive sleep apnea and remanded the reopened service connection claim to the AMC/RO for additional development, including obtaining outstanding medical records from all medical care providers who treated the Veteran's sleep apnea beginning August 2009, and providing a VA examination regarding the etiology of his obstructive sleep apnea disability. That development was completed and the case was returned to the Board for appellate review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for obstructive sleep apnea. Although the Board regrets the additional delay, further development is needed prior to adjudicating the merits of the claim. Service connection generally requires competent and credible evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection is also warranted for a disability that is aggravated by, proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49(2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Court has held that "a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional." LeShore v. Brown, 8 Vet. App. 406, 409 (1995). However, a medical opinion cannot be disregarded solely on the rationale that the medical opinion is based on a history provided by the veteran. Coburn v. Nicholson, 19 Vet. App. 427 (2006). On the other hand, the Board may reject a medical opinion if the Board finds that other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. The Board should evaluate the credibility and weight of the history upon which the opinion is predicated. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Review of the record reveals that the Veteran was provided with a VA examination regarding the etiology of his obstructive sleep apnea disability. See August 2010 VA Examination Report. Although the examiner provided opinions regarding the etiology of the Veteran's obstructive sleep apnea disability, the Board finds that such opinions are incomplete. In this regard, although the examiner provided a negative opinion regarding whether the Veteran's obstructive sleep apnea disability is "caused by or a result of" the service-connected chronic fatigue syndrome, the examiner failed to opine whether the Veteran's obstructive sleep apnea disability "was aggravated by" the service-connected chronic fatigue syndrome. In addition, in forming a negative opinion regarding whether the Veteran's obstructive sleep apnea disability is "caused by or a result of" the service-connected chronic fatigue syndrome, the examiner noted that the Veteran's weight gain was the reason for his obstructive sleep apnea disability; however, the examiner failed to discuss whether the Veteran's weight gain was the result of his chronic fatigue syndrome disability. Thus, the examiner failed to provide a complete rationale for the negative nexus opinion. See id. Further, the examiner noted that in May 26, 2010, another physician noted "that obstructive sleep apnea could be due to pulmonary hypertension," and "any relationship between obstructive sleep apnea and pulmonary hypertension is still being debated in the medical community." The examiner failed to provide an opinion regarding whether the Veteran's obstructive sleep apnea was caused by, was the result of, or was aggravated by his service-connected hypertension disability. See id. The Board notes that the May 26, 2010, VA treatment record is not in the Veteran's claims folder. The August 2010 VA examiner also failed to provide a rationale for his opinion that obstructive sleep apnea "is less likely as not (less than 50/50 probability) caused by or a result of military service." Therefore, the Board finds such examination inadequate to decide the claim. As such, an addendum to the August 2010 VA Examination Report regarding the service connection claim for obstructive sleep apnea, or a new VA examination, if the August 2010 examiner is not available, is necessary to ascertain whether the Veteran's obstructive sleep apnea disability is related to service, or aggravated by any service-connected disability, to include chronic fatigue syndrome and hypertension. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010). Accordingly, to ensure that VA has met its duty to assist in developing the facts pertinent to the claims on appeal and to afford full procedural due process, the case is REMANDED for the following action: 1. The AMC/RO should obtain the Veteran's VA treatment record regarding his obstructive sleep apnea disability and its relationship to his hypertension disability, dated May 26, 2010, and associate this record with the claims folder. To the extent there is an attempt to obtain records that is unsuccessful, the claims folder should contain documentation of the attempts made. The Veteran and his representative should also be informed of the negative results, and should be given an opportunity to obtain the records. 2. After the above development has been completed and outstanding May 26, 2010 record has been associated with the claims file, the claims folder should be returned the same VA examiner who conducted the August 2010 VA examination at Nashville VAMC for clarification of his opinion as to whether the Veteran's obstructive sleep apnea disability is related to service, to include credible statements of chemical and environmental risks while serving in the Southwest Asia theater of operations (see November 2010 Type- Written Statement from the Veteran). A complete rationale should be provided for any opinion. Further, the examiner should provide an opinion regarding whether the Veteran's obstructive sleep apnea disability is related to, proximately due to, or aggravated by the service-connected chronic fatigue syndrome disability. A complete rationale should be provided for any opinion. The examiner should also provide an opinion regarding whether the Veteran's obstructive sleep apnea disability is related to, proximately due to, or aggravated by the service-connected hypertension disability. A complete rationale should be provided for any opinion. If the August 2010 VA examiner is not available, the Veteran should be provided a new VA examination regarding his obstructive sleep apnea disability. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current obstructive sleep apnea disability is related to the Veteran's service, to include credible statements of chemical and environmental risks while serving in Southwest Asia theater of operations (see November 2010 Type-Written Statement from the Veteran). The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that obstructive sleep apnea disability is related to, proximately due to, or aggravated by the Veteran's service-connected chronic fatigue syndrome disability. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that obstructive sleep apnea disability is related to, proximately due to, or aggravated by the Veteran's service-connected hypertension disability. A complete rationale should be provided for any opinion. The claims folder should be made available to the examiner for review. The entire claims file must be reviewed by the examiner in conjunction with examination and the report should state that such review has been accomplished. 3. Upon completion of the above-requested development, the RO should readjudicate the Veteran's service connection claim, taking into account any newly obtained evidence. If the service connection claims remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case as to the issues remaining on appeal, and afforded a reasonable period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 failure to cooperate by not attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ C. TRUEBA 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).