Citation Nr: 1314690 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 07-01 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for sleep apnea to include as secondary to service-connected diabetes mellitus and/or post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from February 1965 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. A Travel Board hearing was held on November 3, 2011, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. In February 2012, the Board remanded this claim for additional development. The case has been returned to the Board and is ready for further review. 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 Reason for Remand: To obtain an addendum medical opinion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran claims that he is entitled to service connection for sleep apnea, either on the basis that it is directly related to active service or on the basis that it is related to his service-connected diabetes mellitus and/or his service-connected PTSD either by causation or by aggravation. As noted above, in February 2012, the Board remanded this claim. The Board was seeking an addendum opinion. The Board noted that the October 2008 VA examiner in this case reported that the Veteran's sleep apnea was not caused by diabetes or PTSD, but did not provide an opinion as to whether the Veteran's sleep apnea is aggravated by his service-connected diabetes mellitus and/or his PTSD. An addendum opinion was obtained in March 2012. The examiner stated that the sleep apnea has not been aggravated by PTSD or diabetes; however, the rationale provided was that there is no medical evidence that sleep apnea is a condition that is caused by diabetes or PTSD. The rationale provided is inadequate since aggravation of a disorder is separate and distinct from causation. Further, although not requested to do so in the Remand by the Board, the VA examiner offered the opinion that the sleep apnea was not related to service because it was not treated in service. The absence of in-service evidence of sleep apnea need not be fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The examiner did not consider the Veteran's lay statement of having sleep apnea since he was in Vietnam. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). Thus an addendum opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Return the complete claims file, to include a copy of this remand, to the October 2008 VA examiner. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner, If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. The examiner should provide an opinion as to whether it is at least as likely as not (ie., a 50 percent or better probability) that the Veteran's sleep apnea is caused by or aggravated by (permanently worsened beyond normal progression of the disorder) either or both the service-connected diabetes mellitus and PTSD. The examiner is advised that causation and aggravation are different theories of entitlement, and are assessed based on different criteria. If the examiner finds that the sleep apnea is aggravated by either or both the service-connected diabetes mellitus and PTSD, the examiner should quantify the degree of aggravation if possible. The examiner should also address whether it is at least as likely as not that the Veteran's sleep apnea was incurred in or aggravated by service. In providing this opinion, the examiner must acknowledge and discuss the Veteran's competent statements that his sleep apnea began during his service after Vietnam. The examiner cannot rely solely on a lack of treatment in the service records to provide a negative opinion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. In rendering the opinions, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the October 2008 VA examiner is unavailable, another qualified examiner shall be requested to provide the above opinions. Should a new examination be required, one should be scheduled. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 2. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2012); See also Stegall v. West, 11 Vet. App. 268 (1998). 3. Following completion of the above, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).