Citation Nr: 1311389 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 13-02 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for sleep apnea, to include as secondary to service connected narcolepsy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from May 2002 to August 2002 and from March 2003 to December 2005. He has additional service in the Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision of the Wichita, Kansas, regional office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. 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 contends that he has developed sinusitis and sleep apnea as a result of active service. He asserts that he was first treated for sinusitis during active service, and that while he had allergies prior to service he did not have sinusitis. The Veteran further contends that he first developed sleep apnea during service. He states that he has never claimed that this is secondary to his service connected narcolepsy, but rather that the same 2004 sleep study that diagnosed narcolepsy also showed evidence of sleep apnea. The Veteran notes that his records were lost and then recovered, but he believes that other records may still be missing. He believes that this is because he transferred from the Marine Corps Reserve to the Air Force Reserve, and because his unit was evacuated from New Orleans during Katrina. Electronic correspondence between the Veteran and the National Personnel Records Center (NPRC) confirms that his records were missing, but also state that his full medical records had been recovered. However, as noted by the Veteran in a December 2012 statement contained in the electronic record, he believes that there are still records missing from his folder. For example, the 2004 sleep study that was conducted during active service was not among the records received, and the Veteran notes that he had to find and submit this study on his own. The Veteran recalls being treated on occasions that are not contained in the record. A review of the claims folder confirms that NPRC has been contacted in an attempt to obtain the Veteran's service treatment records. However, it is unclear as to whether other repositories have been contacted in order to ascertain if they may have some or all of the missing records. As the Veteran had service in two different branches of the Reserve, it is possible that the records are stored somewhere other than NPRC. In fact, an August 2009 Department of the Air Force document indicates that the Veteran's medical records were to be transferred to Randolph Air Force Base, Texas. It is unclear whether VA has contacted this location in the search for the Veteran's records. In this regard, VA has an obligation to obtain all records in the custody of a Federal department or agency until it is determined the records do not exist or a follow-up request would be futile. 38 C.F.R. § 3.159(c)(1) (2012). Finally, the Board notes that the May 2012 examiner was not requested to provide an opinion as to whether or not the Veteran's sleep apnea was incurred due to active service on a direct basis. He was only requested to opine on secondary service connection, and that is the only opinion he provided. However, given that the Veteran contends that his sleep apnea first began during service and not due to narcolepsy, it is important that an opinion on direct service connection be obtained. Furthermore, any additional records that might be received could have a bearing on the opinions obtained at a May 2012 VA examination. If additional records are obtained, steps must be taken to ensure that the opinions were based on an accurate view of the Veteran's medical history. Accordingly, the case is REMANDED for the following action: 1. Obtain a complete set of the Veteran's service treatment records and personnel records, or verify that there are no additional records to obtain. This should include all records from the Marine Corps Reserve and the Air Force Reserve, and not just those from the Veteran's periods of active duty. All indicated sources should be contacted, to include but not limited to the National Personnel Records Center; the Air Force Personnel Center at Randolph Air Force Base, Texas; Headquarters US Marine Corps, Personnel Management Support Branch in Quantico, Virginia; and any other location that might be indicated. If no additional records are available from these or any other sources that might be contacted during the course of the request, a written finding should be placed within the claims folder verifying that an additional search is likely to be futile. 2. After the receipt of any additional personnel records requested above or verification that there are no additional records, compile a list of the dates of all the Veteran's periods of active duty for training and inactive duty for training. Place this list in the claims folder. 3. Once the service treatment records requested above have been obtained or verification that there are no additional records has been completed, return the Veteran's claims folder to the examiner who conducted the May 2012 VA examinations regardless as to whether or not new records were received. The examiner should be requested to review the claims folder, any additional records, and his previous examination report. He should express an opinion as to whether it is as likely as not that the Veteran's sleep apnea was incurred due to active service. If the examiner finds that he is unable to respond without resort to speculation, the reasons and bases for that conclusion should be provided. If additional service treatment records are received that were not available to the examiner at the time of his May 2012 review, he must also comment as to whether or not any changes are warranted as to his opinion that sleep apnea was not due to the Veteran's service connected narcolepsy, or that sinusitis clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated by service. If the May 2012 examiner is no longer available, the claims folder must be forwarded to another similarly qualified examiner in order to provide the requested opinion regarding direct service occurrence for sleep apnea and to determine if the other May 2012 opinions remain valid. An additional examination is not required unless deemed necessary by the examiner. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). _________________________________________________ ERIC S. LEBOFF 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).