Citation Nr: 1310123 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-21 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected allergies. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to January 2007. His tour of duty included service in the Southwest Asia Theater of Operations in support of the Persian Gulf War. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Petersburg, Florida, which denied the Veteran's claim. In May 2012, the Veteran presented testimony before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of the hearing has been associated with the Veteran's claims folder. The record reflects that the appellant has submitted additional evidence to the Board in conjunction with this case, accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2012). The Board accepts this evidence as part of the record. 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 on his part. REMAND The Veteran contends that he currently suffers from obstructive sleep apnea, which he claims he developed during active duty service, and has been a chronic condition ever since. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to adjudication of the claim During his hearing before the Board, the Veteran testified that, although he did not seek treatment for a sleep or breathing disorder during service (and was not diagnosed with obstructive sleep apnea until after service), he woke up several times a night beginning approximately in 2002 during service. His wife, who also testified during the hearing, said that it was during this time that she first noticed him making unusual snoring sounds and added that he would occasionally stop breathing during his sleep. In this respect, the Board notes that the Veteran is competent to provide a history of his sleep disorders, including when he first noticed these problems. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that lay evidence can be competent with respect to both the diagnosis and the etiology of a disability). In addition to the lay statements of record, the claims folder also contains a May 2012 letter from the Veteran's private physician, who states that the Veteran had symptoms of obstructive sleep apnea prior to diagnosis of the condition. The Veterans Claims Assistance Act of 2000 ("VCAA"), Public Law No. 106-475, 114 Stat. 2096 (2000), states that VA has a duty to assist claimants in substantiating their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Review of the claims folder reveals that, although the Veteran was provided with VA examinations in August 2009 and November 2010 for other claimed disorders, including insomnia, he has never been afforded a VA examination to determine the etiology of his obstructive sleep apnea. Moreover, although the Veteran's claim was not initially adjudicated to include service connection on a secondary basis, review of the Veteran's statements of record (including a June 2009 statement to his treating clinician) suggests that the Veteran is also claiming that the condition may be secondary to his service-connected allergies. The Board notes, however, that a new theory of causation or a new theory of entitlement does not constitute a new claim. Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim). Because the Veteran has not been notified of what evidence is necessary to substantiate a claim of entitlement to service connection on a secondary basis, the RO/AMC must provide the Veteran with appropriate VCAA notice that addresses service connection for obstructive sleep apnea based on this newly-raised theory of entitlement. In this case, because there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the [V]eteran's service," but there is "insufficient competent medical evidence on file for the Secretary [of VA] to make a decision on the claim," a VA examination and opinion as to whether the Veteran's obstructive sleep apnea began during service or is related to his service-connected allergies is warranted. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(1). The requirement under the VCAA for warranting a VA examination, that the evidence "indicates" that the veteran's disability "may" be associated with the veteran's service, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In addition, although, as noted above, the claims folder contains a letter from the Veteran's private physician, there are no private reports of record from this practitioner relating to his treatment of the Veteran for obstructive sleep apnea. Accordingly, while the case is on remand status, an attempt to obtain any available private treatment records should be undertaken. Finally, it is observed that during the Board hearing, the undersigned Veterans Law Judge mentioned a Statement of the Case ("SOC") or Supplemental Statement of the Case ("SSOC") dated May 2012. However, this document is not in the paper folder or in the Veteran's Virtual VA electronic folder. The RO/AMC should therefore make sure that a May 2012 SOC or SSOC has been associated with the record and a copy has been sent to the Veteran. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should be sure to send the Veteran a VCAA letter advising him how to substantiate a claim of entitlement to service connection on a secondary basis. A reasonable amount of time should be provided to allow the Veteran to present evidence. Any negative response must be noted in the claims folder. 2. The RO/AMC should send the Veteran an authorization and release form to allow it to obtain any private records for treatment of his obstructive sleep apnea and allergies, to include records of Dr. Sorresso. All records obtained should be associated with the claims folder. Any negative response must also be associated with the claims folder. 3. The RO/AMC should associate the May 2012 SOC or SSOC either with the paper claims folder or the electronic Virtual VA record. It should also make sure the Veteran has been provided with a copy of this document. 4. Following completion of the above, schedule the Veteran for an examination with an appropriate, qualified examiner to determine the nature, approximate onset date and/or etiology of any current obstructive sleep apnea. Any tests deemed necessary should be conducted and all clinical findings should be reported in detail. The claims folder and a copy of this remand must be provided to the examiner for review of pertinent documents therein in conjunction with the examination and the examiner must note that it has been reviewed. The examiner should also elicit from the Veteran his history of symptomatology and note that, in addition to the medical evidence, the Veteran's lay history has been considered in the examination findings. As to any obstructive sleep apnea diagnosed, the examiner is asked to indicate whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder began during, or is otherwise related to active duty service, to include whether the condition was caused or, alternatively, permanently aggravated by his service-connected allergies. If it is determined that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected condition before the onset of aggravation. Any and all opinions must be accompanied by a complete rationale. The examiner should note that "aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The clinician is also advised that the term "as likely as not" does not mean within the realm of 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 causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated, along with a complete rationale for why he or she is unable to provide such an opinion. 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. The claim on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with an SSOC and afforded the opportunity to respond thereto. The matter(s) should then be returned to the Board, if in order, for further appellate process. 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). 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). _________________________________________________ K. PARAKKAL 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).