Citation Nr: 1320576 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 11-06 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1981 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in August 2012. A transcript of the hearing is associated with the claims file. In addition to the paper claims file, there is a Virtual VA paperless file associated with the Veteran's claims. A review of the documents in the paperless claims file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities has been raised by the record, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over a claim for TDIU due to the Veteran's service-connected disabilities, and it is REFERRED to the AOJ for appropriate action. 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 The Board's review of the claims file reveals that further RO or AMC action on the issue on appeal is warranted. A review of the record shows that additional medical records that are pertinent to the claim have not been associated with the Veteran's paper claims file or Virtual VA electronic claims file. During the August 2012 hearing, the Veteran testified that a home-based sleep study was conducted by a VA-contracted private agency. In a February 2010 VA sleep disorder consultation note, the authoring physician noted that a home-based sleep study report was received from Rotech Healthcare that showed mild obstructive sleep apnea; however, during a December 2010 VA examination, the examiner noted that the details of the home-based sleep study report were not available. Additionally, the Board notes that the most recent VA treatment records associated with the claims file are dated in August 2010. During the August 2012 hearing, the Veteran testified that he was treated by VA providers approximately once monthly for his sleep apnea. Therefore, on remand, the RO or AMC must obtain any outstanding VA treatment records and associate them with the claims file. VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3) (West 2002); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered); see also 38 C.F.R. § 3.159(c)(2). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell, 2 Vet. App. at 611. In the December 2010 VA examination report, the examiner opined that the Veteran had a current diagnosis of mild obstructive sleep apnea. He did not provide an etiology opinion. In a February 2011 addendum opinion, he stated that PTSD has no bearing on sleep apnea and there was no causal relationship between PTSD and sleep apnea. Therefore, he opined that the Veteran's sleep apnea was not caused by or related to his service-connected PTSD. Nevertheless, the examiner did not specifically address the issue of whether the current diagnosis of mild obstructive sleep apnea manifested in service or is otherwise causally or etiologically related to his military service. In addition, the examiner did not address whether the Veteran's service-connected PTSD may have aggravated his sleep apnea. The Court has held that when aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation. See Allen v. Brown, 7 Vet. App. 439, 446 (1995); see also 38 C.F.R. § 3.310; 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Therefore, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any sleep apnea that may be present. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should undertake appropriate development to obtain any outstanding medical records pertaining to treatment or evaluation of the Veteran's sleep apnea, to include any relevant VA treatment records that are not already of record, including any VA treatment records dated after August 2010. A specific request should also be made for records pertaining to a VA-contracted sleep study conducted by Rotech Healthcare in approximately January to February 2010. If such records cannot be located, the RO or AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO or AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After all records and/or responses received are associated with the claims file, return the claims file to the December 2010 VA examiner (or if he is unavailable, to another suitably qualified examiner) for a medical opinion to determine the nature and etiology of the Veteran's previously diagnosed sleep apnea. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. Access to the claims file, Virtual VA, and a copy of this remand must be made available to the examiner for review. With regard to the Veteran's currently diagnosed obstructive sleep apnea, the examiner must opine as to the following: (a) Whether it is as least as likely as not (i.e., is there a 50 percent probability or more) that obstructive sleep apnea manifested in service or is otherwise causally or etiologically related to military service. In rendering this opinion, the examiner should take care to review and discuss, as necessary, the statements made by the Veteran, his ex-wife, and his mother regarding observed symptomatology during sleep. (b) Whether it is as least as likely as not (i.e., is there a 50 percent probability or more) that obstructive sleep apnea was caused by or permanently aggravated by his service-connected PTSD. In rendering this opinion, the examiner should take care to review and discuss, as necessary, the literature submitted by the Veteran in March 2011 regarding the co-morbidity of sleep apnea and PTSD. It should be noted that the Veteran and other lay persons are competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran or any other individual, the examiner should provide a fully reasoned explanation. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. Additional examination of the Veteran should only be ordered if such examination is deemed necessary to provide the requested opinion. 3. The RO or AMC should review the examination report to ensure that it is in complete compliance with this remand. If the report is deficient in any manner, the RO or AMC should implement corrective procedures. 4. When the development has been completed, the case should be reviewed by the RO or AMC on the basis of additional evidence. All applicable laws, regulations, and theories of entitlement should also be considered. If the benefits sought are not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ STEPHANIE L. CAUCUTT 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).