Citation Nr: 1311157 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-40 470A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for sleep apnea, claimed as secondary to service-connected deviated septum with history of fracture of nasal septum, status post nasoseptoplasty, or to service-connected hypertensive cardiovascular disease. ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from September 1978 to September 1999. This matter comes before the Board of Veterans' Appeals (BVA or Board) from September 2008 and September 2009 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran filed his initial claim of entitlement to service connection for sleep apnea in October 2007. The September 2008 rating decision denied service connection for sleep apnea, finding no evidence of a current diagnosis or treatment of the condition or of a nexus to service. In March 2009, the Veteran filed a statement in which he again requested service connection for sleep apnea. Subsequently, within one year of the September 2008 rating decision, new VA treatment records were received which contained evidence of a current diagnosis of sleep apnea. The RO again denied the claim in a September 2009 rating decision, and the Veteran filed a timely notice of disagreement from which this appeal arose. Since new and material evidence (the VA treatment records showing a diagnosis of sleep apnea) was received prior to the expiration of the one year appeal period from the September 2008 rating decision, under 38 C.F.R. § 3.156(b), the current appeal is a continuation of the claim filed in October 2007, and the September 2008 rating decision did not become final. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran contends that his current sleep apnea either began during active service or was caused or aggravated by his service-connected deviated septum or hypertensive cardiovascular disease. His service treatment records show that in November 1994, during active service, the Veteran complained of snoring and was diagnosed with turbinate hypertrophy as well as possible obstructive sleep apnea pending a sleep study. However, a January 1995 sleep study did not find any evidence of sleep apnea. In December 1994, the Veteran saw an ENT specialist and reported difficulty breathing through his nose ever since he underwent a tonsillectomy in 1988. The doctor diagnosed a deviated nasal septum, and the Veteran underwent a nasal septoplasty in February 1995. In July 1995, the Veteran reported nasal congestion and some airway obstruction, and he was diagnosed with mild to moderate allergic rhinitis. In August 1996, he reported ongoing problems breathing and was diagnosed with non-specific rhinitis. Following separation from service, in February 2008, the Veteran reported respiratory problems including dyspnea on exertion and congestion which were diagnosed as rhinitis and an upper respiratory infection. Post-service treatment records show that the Veteran is a long-term smoker. A June 2005 VA treatment note indicates the Veteran was up to smoking two packs per day from one-and-a-half packs per day for 23 years. In February 2009, the Veteran reported a very long history of sinonasal problems extending back to the 1980s. He told the VA clinician that he was diagnosed with sleep apnea in the late 1990s (although this is not documented), but had never had a CPAP. Currently, he reported excessive loud snoring and did not feel that he rested well. He had been told by his partner that he stopped breathing at night, and he had constant nasal congestion. He also reported seasonal symptoms as well as daily postnasal drainage. A sleep study was ordered and conducted in March 2009; it confirmed a diagnosis of sleep apnea. The Veteran was afforded a VA examination in August 2009. The VA examiner, after reviewing the Veteran's records and conducting a physical examination, opined that the Veteran's current sleep apnea was less likely than not related to the condition for which he underwent a septoplasty in 1995. Moreover, the VA examiner stated that he found no connection between the sleep apnea and the Veteran's heart disease or ptosis. Moreover, while the VA examiner stated that a deviated nasal septum does not cause sleep apnea, it can aggravate snoring and possibly aggravate sleep apnea. The Board finds that a new VA opinion (or examination, if deemed necessary) is necessary to address the question of whether the Veteran's current sleep apnea was aggravated by his service-connected deviated septum in light of the 2009 VA examiner's statement that a deviated septum can aggravate sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA opinion (or examination, if deemed necessary) addressing the causation or etiology of the Veteran's current sleep apnea. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that the current sleep apnea has been caused or aggravated (permanently worsened in severity) by the Veteran's service-connected sleep apnea. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. If the opinions and/or supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion is due to a need for further information (with such needed information identified) or because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's claimed sleep apnea. 2. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If any benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the 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 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). _________________________________________________ MICHELLE L. KANE 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).