Citation Nr: 1307414 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-40 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA). 2. Entitlement to service connection for hypertension. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to May 1983, January 1985 to January 1991, and December 2004 to September 2005. Also, the Veteran had unverified service in the Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2011, the Veteran testified before the undersigned Veterans Law Judge by videoconference hearing. A copy of the transcript is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for obstructive sleep apnea and hypertension. Service connection may be established for a disability resulting from (1) a disease or injury incurred in or aggravated by active duty or ACDUTRA, or (2) an injury incurred in inactive duty training. See 38 U.S.C.A. §§ 101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2012); see also Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). For certain chronic disorders, including hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The presumption provision applies only to periods of active duty, not INACDUTRA. See Biggins, supra; see also Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995) [if claim relates to period of ACDUTRA, a disease or injury resulting in disability must have manifested itself during that period]. The Board has reviewed the evidence of record. Service treatment records dated in December 1985 reflect that the Veteran had elevated blood pressure during a dental clinic visit and he was sent for a physical. By history, he denied high blood pressure. Physical exam was within normal limits except for blood pressure of 140/96. The examiner indicated that further evaluation was required and planned a 5 day blood pressure check. This 5-day evaluation showed readings for 130/84, 152/88, and 142/88, the assessment was normal blood pressure, will continue to have blood pressure checks. In late December 1985, it was indicated that the average of 5 days of readings was 138/84. The assessment was "normal tensive now." Service treatment records reflect normal clinical evaluation on separation examination in September 1990. At that time, blood pressure was 120/86, and the Veteran denied high blood pressure, and respiratory problems. US Air Force Reserves medical records included an August 1995 and May 2000 reports of examination that showed normal clinical evaluation; blood pressure was 128/82 and 134/86, respectively. The Veteran denied high blood pressure and respiratory problems on the history part of those exams. In a February 2002 Health Risk Assessment, the Veteran reported that he had never been told he had problems with blood pressure and he denied respiratory problems. US Air Force Reserves health assessments were conducted prior to and after his overseas deployments. Pre and post deployment health assessments dated between 2004 and 2006 are silent for hypertension and OSA. Private treatment records dated in October 2007 from the Veteran's primary care physician reflects that he was initially evaluated in October 2007. The Veteran reported that his blood pressure had been high since at least last weekend. He reported a family history of hypertension. At this time, his wife noted that he had symptoms of sleep apnea and that he had had a sleep study. The assessment included hypertension and sleep apnea. The physician ordered a repeat sleep study. A November 2007 note reflects home blood pressure reading of 140s/upper 80s-100s. The assessment was hypertension improved, but not at goal. Antihypertensive medication dosage was increased. A September 2009 note reflects follow-up for hypertension. Private sleep medicine treatment records dated October 2007 to July 2008 reflect that the Veteran presented for a sleep consultation on recommendation of his primary care physician. By history, he had been a snorer for the past 10 years. Also, by history, he was recently diagnosed with essential hypertension. A sleep study was conducted in November 2007 that revealed severe OSA. The Veteran was prescribed a CPAP machine with good results. Reservist medical records show that the Veteran reported his recent diagnosis of OSA and hypertension to his reserves unit. The medical squadron requested a medical waiver for world wide deployment, noting that the Veteran would not be worldwide qualified . A service personnel record dated in August 2008 reflects that the Veteran was not qualified for worldwide deployment due to OSA. An October 2008 Worldwide Duty Checklist shows that the Veteran had a disqualifying condition which was not related to duty and did not happen while on duty. The Veteran testified before the undersigned Veterans Law Judge in October 2011. He argued that service connection was warranted because he was forced to retire from the US Air Force Reserves due to OSA and hypertension. The Veteran acknowledged that he had not been diagnosed with these conditions during any period of active duty but averred that he was told he snored by bunkmates during his last deployment in 2005 and that he had had borderline hypertension during a period of active duty. He indicated that he was married in 1997, but his wife did not complain of his snoring until early 2000. He indicated that, during evaluation for reversal of vasectomy, OSA was found and that he underwent a sleep study in 2006 or 2007 that confirmed OSA. After careful review of the evidence, the Board finds that remand is necessary. VA's duty to assist includes obtaining a medical examination or opinion where necessary to decide the claim. Furthermore, VA examination is warranted where there is an indication that a current disability is related to service. 38 C.F.R. § 3.159(c)(4). See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Duenas v. Principi, 18 Vet. App. 512 (2004) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). Here, the record shows that the Veteran underwent evaluation for elevated blood pressure readings during a period of active duty. The record further shows that the Veteran snored during his 2005 period of active duty. It is noted that the Veteran is competent to report that he snores or has been told that he snores. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran suggests that his snoring in 2005 represents an early manifestation of sleep apnea. There are no complaints or findings for interrupted breathing prior to 2007, when the Veteran's wife reported that he had symptoms of sleep apnea. In this case, a VA examination and medical opinion is necessary addressing whether the claimed conditions were first manifested in during a period of active duty or ACDUTRA, or aggravated by active duty or ACDUTRA. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination by a physician to determine whether the Veteran's hypertension is as likely as not (50 percent probability or greater) related to either of his periods of active duty or ACDUTRA. The physician should address whether the Veteran's elevated blood pressure readings during active duty in 1985 represent an early manifestation of later diagnosed hypertension. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the physician, and any indicated studies should be performed. A complete rationale for all opinions is required. The physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, etc., relied upon in reaching the conclusions. If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible. 2. The Veteran should be afforded a VA examination by a physician to determine whether the Veteran's obstructive sleep apnea is as likely as not related to either of his periods of active duty or ACDUTRA. The physician should address whether the Veteran's snoring in 2005 during active duty represents an early manifestation of later diagnosed obstructive sleep apnea. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the physician, and any indicated studies should be performed. A complete rationale for all opinions is required. The physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, etc., relied upon in reaching the conclusions. If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran a supplemental statement of the case and afford him the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The Veteran 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). 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. 2012). _________________________________________________ MICHAEL LANE 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).