Citation Nr: 1317182 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 06-00 045A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for sleep apnea, to include as due to service-connected disorder, to include posttraumatic stress disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and B.Y. ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). In its October 2012 remand, the Board noted that the Veteran, in a February 2012 statement, raised the issue of entitlement to service connection for prostate cancer and entitlement to service connection for cholesterol. These issues have not been adjudicated by the RO. As such, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Additional development is required before the issue of entitlement to service connection for sleep apnea as directly related to service, can be adjudicated. Specifically, an addendum to the December 2012 VA examination must be provided, for the reasons discussed below. In numerous statements throughout the record, the Veteran reported that his sleep problems began during service, and worsened during his service in Vietnam. Specifically, in an April 2004 statement, he reported that he was initially treated for his sleep condition on July 25, 1968, about a month prior to his arrival in Vietnam. He further reported that his sleep condition became chronic in Vietnam, and his current sleep apnea is the result of his in-service complaints. The Veteran's January 1968 induction physical examination report is negative for complaints of, treatment for, or diagnosis of a sleep disorder. Service treatment records include a July 25, 1968 record in which the Veteran reported that he could not sleep; however, there is no diagnosis noted. The September 1970 separation physical examination report is negative for complaints of, treatment for, or diagnosis of a sleep disorder. Post-service private treatment records dated in March 2004 demonstrate the Veteran underwent a sleep study which resulted in an initial diagnosis of obstruction sleep apnea. In connection with his claim for direct service connection, the Veteran underwent VA examinations in January 2010, November 2011, and February 2012. Upon examination and review of the claims files, the examiners concluded that the Veteran's current sleep apnea was not related to his service. The stated rationale for such opinions, in significant part, was that the Veteran's service treatment records did not contain any complaints of sleep problems or documentation of sleep apnea. Notably, the most recent VA examiner stated that the Veteran did not have to seek care for a sleep disorder during service. The January 2010, November 2011, and February 2012 VA opinions are inadequate for the purposes of adjudicating the appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Although the aforementioned VA examiners stated in their reports that the Veteran's claims files were reviewed, they did not make any reference to the July 25, 1968 service treatment record in which the Veteran reported that he could not sleep. As such, an addendum to the December 2012 VA examination must be obtained, in which the December 2012 VA examiner or an appropriate VA examiner considers all of the pertinent medical evidence of record and provides an opinion addressing whether the Veteran's current sleep apnea disorder had its onset in service or is otherwise related to service. Accordingly, the case is remanded for the following actions: 1. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. If the VA examiner that conducted the December 2012 examination is unavailable, an appropriate VA examiner must be directed to provide the supplemental finding to the December 2012 VA examination. If the VA examiner determines another examination is necessary to provide the finding, an examination must be scheduled. Based upon the evidence of record, to include the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's current sleep apnea is directly related to his active duty service. The examiner must consider and discuss all of the pertinent medical evidence record, to include the July 25, 1968 service treatment record, in which the Veteran reported that he could not sleep. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 2. The addendum report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).