Citation Nr: 1231055 Decision Date: 09/11/12 Archive Date: 09/19/12 DOCKET NO. 10-11 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for shortness of breath. 3. Entitlement to service connection for musculoskeletal chest pain. 4. Entitlement to service connection for low back pain. 5. Entitlement to service connection for sciatica. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from August 1969 to August 1971 and in the U.S. Army from November 2004 to March 2007. Prior to his last period of active duty, he also had additional service in the U.S. Army Reserves. This appeal to the Board of Veterans' Appeals (Board) is from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran initially requested a Travel Board hearing, but through his representative, he subsequently withdrew this request in writing in August 2010. 38 C.F.R. § 20.704(e) (2011). 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2011). I. Missing Service Treatment Records It appears the RO was unable to obtain the Veteran's service treatment records for his period of active duty in the U.S. Army from November 2004 to March 2007, except for one record detailing low back pain treatment on November 22, 2006 at Scott Air Force Base, Illinois. A review of the claims file shows that the VA Records Management Center (RMC) and the U.S. Army Human Resources Center informed the RO that no further service treatment records are available. When, as here, at least a portion of the Veteran's service records are potentially lost or missing, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the Veteran in developing the claims, and to explain the reasons and bases for its decision ...." See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It does not appear that the RO attempted to obtain a copy of his service treatment records from the National Personnel Records Center (NPRC) or alternatively, records from the Surgeon General's Office (SGO), so the AMC should contact the NPRC and SGO on remand. Moreover, the Veteran asserts there are still further service treatment records that should be obtained from the hospital at Scott Air Force Base, Illinois, for the period of active duty form 2004 to 2007. He also indicates that he was treated during a period of Army Reserves ACDUTRA for back strain in May 2004, while stationed at Ft. McCoy, Wisconsin. Requests for the records from Scott AFB and Ft. McCoy were filed in January and April 2008. A single May 2006 report was subsequently received. The Veteran insists that there are outstanding medical records at these facilities. On remand, the AMC must attempt to obtain any outstanding active duty service treatment records from the NPRC and the hospital at Scott Air Force Base, Illinois, or in the alternative, SGO records. The AMC must also attempt to obtain any U.S. Army Reserves ACDUTRA service treatment records from the Troop Medical Clinic at Fort McCoy, Wisconsin. See 38 C.F.R. § 3.159(c)(2) and (c)(3). II. Outstanding Treatment Records The AMC needs to confirm if there are any outstanding private or VA treatment records. This is especially important because the claims file is generally devoid of post-service treatment records pertinent to the Veteran's claimed disabilities. Such records might establish current diagnoses for his several claimed disabilities. The claims file shows that he had received VA outpatient treatment at the St. Louis VA Medical Center (VAMC), dated from September 2005 to November 2007, so only until a few months after discharge from active duty in March 2007. Especially since over five years have elapsed since then, it is important to ascertain whether the Veteran had further post-service treatment at the St. Louis VAMC, i.e., since November 2007. Moreover, he asserts he received treatment for his claimed disabilities (e.g., shortness of breath, heart problems, sciatica, and sleep apnea) at the St. Louis VAMC since January 1998, so the AMC should confirm if there are outstanding, pertinent treatment records from the St. Louis VAMC from January 1998 to September 2005. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. The claims file also contains pertinent, private treatment records from the Physicians of St. Louis University/SLUCare, including for sleep apnea from Dr. J.E., dated through June 2008; and for general medical problems from his primary treating physician, Dr. M.M., dated through March 2008. The AMC must clarify if the Veteran sought further sleep apnea treatment from Dr. J.E. since June 2008; or if he sought further treatment for general medical problems from his primary care treating physician, Dr. M.M., since March 2008. If he provides a completed release form authorizing VA to obtain these confidential treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. See 38 C.F.R. § 3.159(c)(1) (2011). Any additional VA or private treatment records that are potentially relevant would need to be obtained before deciding his appeal. See 38 U.S.C.A. § 5103A(c)(2) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159(c)(1) and (2) (2011). III. VA Examination and Medical Opinion Based upon the Veteran's personal statements and documents of record, he contends that sleep apnea began in approximately 2005, when he was in active duty service in the U.S. Army, and indicates that he continues to suffer from sleep apnea. During his recent period of Army active duty service, the available medical records show he began in November 2005 to seek treatment for trouble sleeping and was diagnosed with insomnia, as per private treatment records from physicians of St. Louis University/SLUCare. Post-service, the Veteran has established a current, chronic disability of severe obstructive sleep apnea, as diagnosed by his private treating physician, Dr. J.E., in May and June 2008. However, the lay statements are certainly competent since only relating a history of insomnia symptoms that have been observed and experienced by the Veteran, within the realm of lay experience. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Since his allegations of these particular in-service symptoms and post-service symptoms appear to be uncontradicted, even by medical findings of record, the Board finds them to be probative. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In light of the cumulative record, the Veteran needs to undergo a VA examination to determine both the nature and etiology of his current obstructive sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO must attempt to obtain any outstanding service treatment records from the period of U.S. Army active duty from November 2004 to March 2007, from the NPRC and the hospital at Scott Air Force Base, Illinois. In the alternative, contact the Surgeon General's Office to obtain any available records from that office. Also attempt to obtain any outstanding service treatment records for identified ACDUTRA service during May 2004 in the U.S. Army Reserves, from the Troop Medical Clinic at Fort McCoy, Wisconsin. Negative replies should be included in the record. 2. Ask the Veteran whether there are any additional VA or private treatment records that need to be obtained and considered in his appeal. Then obtain any outstanding, pertinent VA treatment records from the St. Louis, Missouri VAMC, especially dated from January 1998 to September 2005, and since November 2007 to the present. See 38 C.F.R. § 3.159(c)(2) (2011). In particular, ask the Veteran to complete and return the necessary authorization (VA Form 21-4142) for VA to obtain any additional medical treatment records from the Physicians of St. Louis University/SLUCare, including from Dr. J.E. and Dr. M.M., and any other outstanding private treatment records. The AMC must clarify if the Veteran sought further sleep apnea treatment from Dr. J.E. since June 2008; or if he sought further treatment for general medical problems from his primary care treating physician, Dr. M.M., since March 2008. If he provides a completed release form authorizing VA to obtain these confidential treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. See 38 C.F.R. § 3.159(c)(1) (2011). 3. After the requested development in paragraphs #1-2 has been completed, schedule the Veteran for a VA examination(s) with a physician with appropriate expertise in order to determine the nature and etiology of his claimed sleep apnea. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. The examiner should respond to the following: a) Confirm if the Veteran currently has a sleep apnea disability, including obstructive sleep apnea. b) For each disability found, did it at least as likely as not (a 50% or higher degree of probability) have its clinical onset during the Veteran's period of active duty service in the U.S. Army from 2004 to 2007, or is any such disability otherwise related to such period of service, including to any in-service injury or disease? For purposes of the examination and opinion, the examiner must consider that the Veteran has credibly asserted the onset of sleep apnea during active duty service in the U.S. Army (2004 to 2007); and post-service continuity of symptoms of sleeping difficulties. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 5. Then readjudicate the claims in light of any additional evidence. If these claims are not granted to the Veteran's satisfaction, send him a Supplemental SOC (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2011). _________________________________________________ MICHAEL A. HERMAN 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) (2011).