Citation Nr: 1316367 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 10-07 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from September 1952 to October 1981. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2008 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. In pertinent part, the rating decision denied service connection for sleep apnea; reopened the claim of service connection for deviated nasal septum and denied it on the merits; and, declined to reopen the claim of service connection for hypertension. The Veteran perfected a timely appeal of those determinations. A Board hearing at the RO the Veteran requested was scheduled. In a January 2012 letter, however, he withdrew his request for a hearing. See 38 C.F.R. § 20.702 (2012). In an April 2012 decision, the Board reopened the claim for entitlement to service connection for hypertension and remanded this matter to the RO for further development. The Board also remanded the matters of entitlement to service connection for sleep apnea and for deviated nasal septum for further development. While the matter was on remand status, the RO in an April 2013 rating decision granted service connection for a deviated nasal septum, which constitutes a full award of the benefits sought on appeal with respect to this issue. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently before the Board contains no indication that the appellant initiated an appeal with the initial ratings or effective date assigned. Thus, this matter is no longer in appellate status. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The Board notes that VA treatment records from CAPRI were obtained that were shown to belong to a different Veteran. However it does not appear that the RO relied on these records in its adjudication, thus there is no prejudice to the Veteran in this matter. This matter has been returned to the Board for further adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In addition to claiming that pertinent disability is related to service, the Veteran has alleged that his sleep apnea is secondary to his service connected deviated nasal septum, and has also alleged that his hypertension is secondary to his sleep apnea. In support of these contentions he has submitted articles apparently from medical studies, including an undated article from the Sleep Center, Sleep Apnea, National Jewish Medical and Research Center that describes some people with deviated septums having problems with sleep apnea. This article also described untreated severe obstructive sleep apnea as being associated with a higher risk for various cardiovascular issues including hypertension. A January 2007 excerpt from a study apparently presented at the Jonathan M. Wainwright Memorial VA Medical Center by a C. R. D. RRT, PSGT described the links between snoring and obstructive sleep apnea and the link between snoring and hypertension. Also discussed was the suggestion that nasal polyps or a deviated septum may also be a factor in obstructive sleep apnea. A June 2009 article from the USA Today also described sleep apnea as causing blood pressure to increase to very high levels. The Veteran submitted medical evidence including a July 2007 medical opinion from a private Dr. R. P. describing treating the Veteran since 2006 with history of multiple diagnoses including pulmonary hypertension and sleep apnea and indicating that the past medical history (which included sleep apnea) has contributed to his heart disease. A January 2007 follow-up for sleep apnea noted a history of coronary artery disease (CAD), with a statement that it was very important for him to use the sleep apnea treatment (CPAP) due to such coronary condition. The May 2012 VA examination, which provided unfavorable opinions as to the link between his sleep apnea and hypertension and service, only provided opinions as to whether these disorders were directly linked to service including to any incident therein, and in the case of the hypertension, additionally addressed whether it had its onset in the presumptive post service year. In view of the grant of service connection for the deviated nasal septum, the issues of secondary service connection must be addressed. Additionally in the case of hypertension, no opinion regarding whether the hypertension was secondary to his service connected PTSD was obtained, and thus development has not complied with the Board's April 2012 remand directives which directed the examiner to address this question. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The May 2012 VA examiner suggested that the sleep apnea may be congenital in origin. Congenital or developmental abnormalities are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2012). Service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). In this regard, VA's General Counsel has held, that service connection may be granted for diseases of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. The VA General Counsel also has held that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). See also 38 C.F.R. § 3.303(c). Thus the examiner addressing the etiology of the sleep apnea should consider whether this is a congenital condition subject to superimposed injury. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AOJ should obtain an addendum opinion regarding the etiology of the Veteran's sleep apnea by the examiner who conducted the April 2012 VA examination. If this examiner is no longer available the AOJ should obtain the opinion from an appropriate physician. The claims file must be provided for review by the examiner. The examiner should opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the sleep apnea underwent an increase in severity during service beyond its natural progress or whether superimposed injury or disease resulted in a worsening of the obstructive sleep apnea during active duty. If not, is it at least as likely as not caused or is aggravated by Veteran's service-connected deviated nasal septum. If aggravated, specify the baseline of sleep apnea prior to aggravation, and the permanent, measurable increase in sleep apnea disability resulting from the aggravation. In rendering the requested opinion, the physician should consider all pertinent evidence, to include the pertinent medical evidence and articles/treatises and lay statements from the Veteran and his wife. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. If it is deemed necessary to conduct another examination to answer these questions, one should be scheduled. 2. Thereafter, following completion of the above, the AOJ should obtain an addendum opinion regarding the etiology of the Veteran's hypertension by the examiner who conducted the April 2012 VA examination. If this examiner is no longer available the AOJ should obtain the opinion from an appropriate physician. The claims file must be provided for review by the examiner. Ask the examiner to opine whether there is a 50-percent probability or greater that his hypertension disability is caused or is aggravated (permanently worsened beyond the natural progression) by service-connected PTSD. If aggravated, specify the baseline of hypertension prior to aggravation, and the permanent, measurable increase in hypertension resulting from the aggravation. In rendering the requested opinion, the physician should consider all pertinent evidence, to include the pertinent medical evidence and articles/treatises and lay statements from the Veteran and his wife. If the hypertension is not shown to be caused or aggravated by the Veteran's PTSD, and only if additional development confirms that the Veteran's sleep apnea is related to service or secondary to a service connected disability, the examiner should opine whether there is a 50-percent probability or greater that his hypertension disability is caused or is aggravated (permanently worsened beyond the natural progression) by his sleep apnea. If aggravated, specify the baseline of hypertension prior to aggravation, and the permanent, measurable increase in hypertension resulting from the aggravation. In rendering the requested opinion, the physician should consider all pertinent evidence, to include the pertinent medical evidence and articles/treatises and lay statements from the Veteran and his wife. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. If it is deemed necessary to conduct another examination to answer these questions, one should be scheduled. 3. Thereafter, re-adjudicate the claims on appeal. All applicable laws and regulations should be considered. If either benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board, if in order. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ THOMAS J. DANNAHER 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).