Citation Nr: 1301742 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-12 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness or as secondary to service-connected sinusitis. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from July 1984 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a video-conference hearing in September 2012 before the undersigned Veterans Law Judge. The transcript has been associated with the claims file. At the Board hearing, the record was held open for 30 days until October 11, 2012, so that the Veteran could submit a statement from his daughter, which was done in October 2012. In his hearing testimony, the Veteran also waived agency of original jurisdiction (AOJ) consideration of this statement. 38 C.F.R. § 20.1304(c) (2012). Nevertheless, in light of the need to remand for further development, the AOJ will have to opportunity to review this statement. 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 The Veteran is seeking service connection for sleep apnea. In statements of record and at his Board hearing, the Veteran reported that he began experiencing symptoms such as snoring, not being able to sleep, and feeling tired while in service. He also related his symptoms to the period when he was stationed in the Southwest Asia theater of operation. He further testified that these symptoms have continued to the present. In support of his claim, he submitted lay statements from fellow service members and his daughter who all reported that the Veteran snored in service. The Veteran underwent a sleep study in December 2008, approximately four years after his retirement from service, and was diagnosed with moderate obstructive sleep apnea. In the alternative, the Veteran has also asserted that this sleep apnea is secondary to his service-connected sinusitis. In support of this contention, the Veteran has submitted internet articles that appear to indicate that sinusitis or other upper respiratory infections could cause or aggravate sleep apnea. The Veteran was afforded a VA examination in December 2010 with a May 2011 addendum indicating that the claims file had been reviewed. Although the examiner appeared to indicate that based on uptodate.com, the Veteran's obesity was the best risk factor for sleep apnea, the examiner failed to offer a clear opinion as to whether the Veteran's sleep apnea manifested in service. Importantly, the examination report did not address the competent lay statements made by the Veteran and his fellow service-members concerning snoring in service. Moreover, the VA examiner also indicated that uptodate.com only indicated that nasal congestion, not sinus congestion was a risk factor for sleep apnea. However, the examiner did not address the internet articles in the claims file or provide a clear opinion as to whether the Veteran's sleep apnea has been aggravated by his service-connected sinusitis. See Allen v. Brown, 7 Vet. App. 439 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, given the deficiencies described above in the December 2010 VA examination report, the Board finds that another VA examination should be afforded to the Veteran to determine the nature, extent and etiology of the Veteran's sleep apnea. Lastly, the most recent VA treatment records associated with the clams file are dated from July 2009. Moreover, the Veteran's Virtual VA electronic record does not include any additional VA treatment records. Further, the Veteran has reported receiving treatment at the VA as early as 2004 when he retired from his service. However, the claims file only includes records dated from December 2008. As VA medical records are constructively of record and must be obtained, the AOJ should obtain VA treatment records dated prior to December 2008 and from July 2009 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should associate all VA treatment records prior to December 2008 and from July 2009 to present with the record. If there are no VA treatment records prior to December 2008, it should be clearly documented in the claims file. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, the Veteran should be scheduled for an appropriate VA examination to determine the etiology of his sleep apnea. It is imperative that the claims file be made available to the examiner for review in connection with the examination, to specifically include these remand instructions. All medically necessary tests should be performed. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to the following: a) Whether it is at least as likely as not (a 50% or higher degree of probability) that sleep apnea is causally related to the Veteran's service, to include his exposure to environmental hazards in the Southwest Asia theater of operations. b) Whether it is at least as likely as not (a 50% or higher degree of probability) that sleep apnea is proximately due to, or caused by, the Veteran's service-connected sinusitis. b) Whether it is at least as likely as not (a 50% or higher degree of probability) that sleep apnea has been aggravated by the Veteran's service-connected sinusitis. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed rationale for all opinions expressed should be provided. The examiner should specifically address the lay evidence concerning symptoms in service as well as the internet publications indicating a link between sinusitis and sleep apnea. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ A. JAEGER 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) (2012).