Citation Nr: 1309909 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-29 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which continued a 60 percent evaluation for intervertebral disc syndrome, degenerative disc disease, lumbar spine, disc herniation L5-S1 and L4-5, with epidural compression; and denied service connection for hypertension and sleep apnea. In January 2009, the Veteran submitted a notice of disagreement (NOD) with the denial of service connection for sleep apnea only. He reiterated the limited scope of his appeal in a January 2010 statement, which he again identified as an NOD. Thereafter, and following being issued a statement of the case, he perfected his appeal in June 2010. In September 2011, the Veteran presented sworn testimony during a Travel Board hearing in Chicago, Illinois, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The Board notes that the Veteran also filed a September 2006 NOD with the evaluations assigned for his right and left knee disabilities in a July 2006 rating decision. He was issued a statement of the case in December 2008 and had until February 2009 to perfect his appeal for these issues. On his January 2009 NOD for sleep apnea, he indicated that he only wished to appeal the sleep apnea claim, but that he wished to be reexamined for his right and left knee disabilities. In March 2009, he filed a VA Form 9 that discussed several disabilities, including the knees and sleep apnea. In March 2010, the Chicago RO issued another rating decision continuing the present evaluations for the Veteran's right and left disabilities and granting a separate 20 percent evaluation for right knee osteoarthritis. The Veteran did not submit a NOD with this issue or otherwise indicate that he wished to continue an appeal with regard to his bilateral knee disabilities. In light of the Veteran's January 2009 statement that he only wished to appeal sleep apnea, the untimely and unspecific March 2009 VA Form 9, and the Veteran's lack of contentions regarding his bilateral knee disabilities since the March 2010 rating decision, the Board finds that these appeals were not perfected and are, therefore, not before the Board. Thus, they will not be discussed further herein. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for sleep apnea. The Veteran was afforded a VA examination to address his sleep apnea in August 2008. The examiner concluded the Veteran's sleep apnea was not related to his service-connected low back and bilateral knee disabilities because disc disease and arthritis of the knees is not known to cause sleep apnea. He then attributed the Veteran's sleep apnea to his obesity. However, the examiner failed to address all of the Veteran's contentions or theories of entitlement to service connection. Specifically, the examiner did not address whether the Veteran's sleep apnea was related to obesity caused by his service-connected orthopedic disabilities or whether his sleep apnea was related to the medication taken for his service-connected orthopedic disabilities. Additionally, the examiner failed to provide an opinion on direct service connection in light of the lay evidence supporting loud snoring in service. In light of these deficiencies, the August 2008 VA examiner's opinion is not adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim of entitlement to service connection for sleep apnea must be remanded for a new VA examination and opinion. As the case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Copies of all outstanding VA treatment records from the Chicago VA Medical Center, and any other VA facility identified by the Veteran, should be obtained and added to the claims folder. 2. The Veteran should be afforded an examination with an appropriate examiner in order to determine the nature and etiology of his sleep apnea. All indicated studies should be performed. The claims folder should be provided to the examiners for review of pertinent documents therein, to include the August 2009 VA examination report and the November 2011 lay statements from the Veteran's fellow service member, brother, and ex-wife. The examination report should reflect that such a review was conducted. The examiner must state whether it is at least as likely as not that the Veteran's currently diagnosed sleep apnea had its onset in service or is otherwise etiologically related to his active service. The examiner must also comment as to whether it is at least likely as not that the Veteran's sleep apnea was caused or aggravated (increased in severity beyond the natural progression of the disorder) by any service connected disability, to include obesity as a result of or medications taken to treat his service-connected orthopedic disabilities. Consideration must also be given to the three lay statements attesting to the Veteran's loud snoring in service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for sleep apnea should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ 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 is appealable to the Court. 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. See 38 C.F.R. § 20.1100(b) (2012).