Citation Nr: 1310869 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 08-11 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected sinusitis, allergic rhinitis and vernal conjunctivitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to September 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In an October 2011 decision, the Board remanded this issue for additional development. 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 The Veteran contends that she is entitled to service connection for sleep apnea as she believes this condition is related to her active duty service or in the alternative to service-connected sinusitis, allergic rhinitis and vernal conjunctivitis. The Veteran was afforded with a VA examination for her sleep apnea in January 2012, pursuant to the Board's remand issued in October 2011. In the Veteran's January 2012 VA examination, the examiner diagnosed the Veteran with sleep apnea and opined that there was no objective evidence to support a finding that the Veteran's obstructive sleep apnea originated in service. The examiner also determined that it was less likely than not that the Veteran's service-connected sinusitis, allergic rhinitis and vernal conjunctivitis were the cause of her sleep apnea. However, while the examiner determined that the Veteran's sleep apnea was not due to her service or her service-connected sinusitis, allergic rhinitis and vernal conjunctivitis, he did not address whether the Veteran's service-connected sinusitis, allergic rhinitis and vernal conjunctivitis has aggravated her sleep apnea disability. The Board notes that 38 C.F.R. § 3.310(a) permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As such the Board finds that the evidence currently of record is insufficient to resolve the claim for service connection for sleep apnea as secondary to service-connected sinusitis, allergic rhinitis and vernal conjunctivitis. Accordingly, the Board finds that the physician who rendered the January 2012 VA opinion should be requested to submit an addendum opinion discussing whether or not the Veteran's sleep apnea disability was aggravated by her service-connected sinusitis, allergic rhinitis and vernal conjunctivitis. Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the same examiner who conducted the January 2012 examination, if possible, to review the claims folder and determine whether the Veteran's sleep apnea disability is aggravated by her service-connected sinusitis, allergic rhinitis and vernal conjunctivitis. If the January 2012 examiner is unavailable, the file should be referred to another similarly qualified medical professional. The examiner should furnish an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's sleep apnea disability is aggravated by her service-connected sinusitis, allergic rhinitis and vernal conjunctivitis disabilities. If the examiner finds that the Veteran's sleep apnea disability has been worsened by her service-connected sinusitis, allergic rhinitis and vernal conjunctivitis disabilities, to the extent feasible, the degree of worsening should be identified. The examiner should fully describe the objective findings that support his or her conclusions. The claims folder should be made available to the examiner in conjunction with the opinion request, and the examiner must indicate on the report that such a review was undertaken. The rationale for all opinions expressed should be set forth. If an opinion cannot be formed without resorting to mere speculation, the examiner should so state and provide a reason for such conclusion. 2. Ensure that the examination report complies with this remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If any benefit sought remains denied, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ DAVID L. WIGHT 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).