Citation Nr: 1315486 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 07-27 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertensive cardiovascular disease or hypertension. 2. Entitlement to service connection for dermatitis, to include as secondary to service-connected allergic rhinitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from March 1969 to November 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2010, the Veteran testified via videoconference at a hearing before the undersigned. A copy of the hearing transcript is of record. In June 2010, the Board remanded this case for additional development. 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 asserts, in pertinent part, that his sleep apnea is related to service-connected hypertensive cardiovascular disease (or hypertension). In the June 2010 remand, the Board directed that that VA afford the Veteran a VA examination to address the medical matters presented by this issue. In accordance with that Remand, the Veteran underwent a VA respiratory examination in November 2010. 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 Board finds that the November 2010 VA opinion obtained in this case is not adequate. First, the November 2010 VA examiner did not address the question of whether the Veteran's sleep apnea was aggravated by his service-connected hypertensive cardiovascular disease. Further, the Board finds that it is arguably unclear as to whether the November 2010 VA examiner provided an opinion as to whether sleep apnea disability began during or is otherwise attributable to the Veteran's active service. In this regard, the examiner stated only that there were no records of the Veteran having any evidence of any obstructive sleep apnea in the military. This is not an opinion as to whether he had sleep apnea during service or whether his current sleep apnea was caused by his active service. As the June 2010 Remand required an adequate medical opinion, there has not been compliance with the Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board "confers on the veteran as a matter of law, the right to compliance with the remand orders," and the Board errs when it fails to ensure compliance with the terms of the remand). More importantly, VA has not met its duty to assist the Veteran in substantiating his claim in this regard. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). Based on the foregoing, the Board concludes that VA must afford the Veteran another examination and obtain an adequate medical opinion concerning the issue of entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertensive cardiovascular disease or hypertension. As for the issue of entitlement to service connection for dermatitis, to include as secondary to service-connected allergic rhinitis, the Board notes that in a July 2010 VA treatment record a VA physician indicated that the Veteran's allergic dermatitis might be related to his allergic rhinitis. The July 2010 VA opinion, stated in speculative language and taken with the other facts of record, triggers VA's duty to afford the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Upon remand, such an examination must be scheduled. Finally, the most recent VA treatment records associated with the claims file are from December 19, 2012. To ensure that a complete record is before VA adjudicators, relevant VA treatment records since that date must be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records pertaining to relevant treatment of the Veteran since December 19, 2012 and associate them with the claims file. 2. Schedule the Veteran for a VA examination that addresses the issue of service connection for sleep apnea. The claims file must be made available for review, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate the examination report as to whether the claims file was reviewed. The examiner is asked to provide opinions as explained below. These opinions must include a rationale. A mere recitation of facts and a conclusion is not adequate. The examiner is asked to accomplish the following: a). Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed sleep apnea disability began during the Veteran's active service or was caused by his active service. b). Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed sleep apnea was caused by the service-connected hypertensive cardiovascular disease/hypertension. (c) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed sleep apnea was has been made permanently worse by the Veteran's service-connected hypertensive cardiovascular disease/hypertension. The examiner is advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 3. Then schedule the Veteran for a VA examination that addresses the issue of service connection for dermatitis, to include as secondary to service-connected allergic rhinitis. The claims file must be made available for review, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate the examination report as to whether the claims file was reviewed. The examiner is asked to provide opinions as explained below. These opinions must include a rationale. A mere recitation of facts and a conclusion is not adequate. The examiner is asked to accomplish the following: a). Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed skin disability began during or is otherwise attributable to the Veteran's active service. b). Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed skin disability was caused by the service-connected allergic rhinitis. In addressing this issue, the examiner is asked in particular to address the July 5, 2010 VA treatment note in which a staff physician speculated as to a relationship between the allergic dermatitis and allergic rhinitis. (c) Provide an expert opinion as to whether it is at least as likely as not that any currently diagnosed skin disability was permanently worsened by the service-connected allergic rhinitis. In addressing this issue, the examiner is asked in particular to address the July 5, 2010 VA treatment note in which a staff physician speculated as to a relationship between the allergic dermatitis and allergic rhinitis. The examiner is advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 4. Ensure that the examination reports are in compliance with this Remand. If there is any discrepancy take immediate corrective action. 5. Then readjudicate the issues on appeal. If any of the benefits sought are not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity for response thereto. Thereafter, the case should be returned to the Board, as appropriate. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ JAMES G. REINHART Acting 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).