Citation Nr: 1320893 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 10-00 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from August 1967 to December 1981 and January 1982 to January 1989. This matter comes to the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for sleep apnea. In October 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. 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 Veteran seeks service connection for sleep apnea, to include as secondary to his service-connected PTSD. He testified at the October 2012 Board hearing that he snored loudly in service so much that people would change rooms because they could not sleep in the same room. He indicated that he sought treatment because his throat was raw and was given throat spray. He also stated that after service he saw a private physician sometime within one year of his retirement from the military, who referred him to North Florida Hospital where he underwent a sleep study. He added that North Florida Hospital is now Shands hospital and he has no idea if the records of treatment are still available. His representative referenced a uvulopalatopharyngoplasty (UPPP) surgery for sleep apnea that was performed on July 14, 1995 at the Gainesville VAMC and noted that this was not of record. VA treatment records in the claims file from Gainesville VAMC include a December 2001 diagnosis of obstructive sleep apnea and note that the Veteran had been treated with a CPAP machine since 1999 at North Florida Hospital where he underwent a sleep study. The service treatment records document multiple instances where the Veteran complained of a sore throat usually along with an assessment of upper respiratory infection; however, there is no mention of or treatment for sleep apnea. The Veteran submitted a buddy statement from a former service member, however, who stated that he was stationed with the Veteran from 1971 to 1976 and 1978 to 1982. The service member indicated that they slept in the same room and on numerous occasions he was not able to get a restful sleep due to the Veteran's loud snoring. He would have to find another room or tent location to rest for the night. He further mentioned that he knew at the time that the Veteran had a sleeping disorder; he just did not know what it was. The Veteran's ex-wife also submitted a statement that she was married to the Veteran from 1994 until 2007 and during the entire marriage, the Veteran had a significant sleep apnea problem that included snoring and teeth grinding. He was treated many times for the apnea including surgery, CPAP machines, and tooth guards. She also believes that he suffered from anxiety that caused him to chew his nails and cuticles and that this might have attributed to his lack of sleep from the apnea. The Veteran underwent a VA examination in August 2008. The examiner indicated a review of the claims file and noted that there was no evidence of sleep apnea in the treatment records. The examiner also noted a review of treatment records from the VAMC in Gainesville from August 2007 to July 2008, which showed a diagnosis of sleep apnea, UPPP surgery for obstructive sleep apnea on July 14, 1995, and treatment with a CPAP mask in April 2004. The examiner determined that the Veteran's sleep apnea was not caused by or the result of his service-connected PTSD; nor was it aggravated by his PTSD. The rationale given was "Medical literature review, medical records review, and clinical experience." The examiner further stated that there was no objective data to support the Veteran's claim that his obstructive sleep apnea was caused or aggravated by his PTSD. The VA examiner in August 2008 did not address the issue of whether the Veteran's sleep apnea is related to his military service, as it appears that initially the Veteran only was claiming sleep apnea as secondary to PTSD. Thus, the RO only instructed the examiner to address the secondary issue. However, the opinion solely related to the secondary issue still is not sufficient, as a rationale was not provided. The examiner's rationale was that she reviewed the medical literature and the Veteran's medical evidence and that she also had clinical experience. However, the examiner did not provide any reasoning as to how she came to the conclusion that the Veteran's sleep apnea was not related to the PTSD. A medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion provided also is insufficient because, as noted, the examiner did not address the issue of direct service connection. While it was noted that the Veteran's service treatment records are negative for any findings of sleep apnea, it is significant that the Veteran indicated that he was treated for sore throats associated with his snoring in service; and the service treatment records reflect numerous instances of complaints of sore throats. Also, the Veteran's testimony and statements from his former service member and ex-wife regarding his loud snoring in service and after service also are relevant evidence that needs to be considered in any medical opinion provided. Finally, it appears that there are outstanding medical records that have not been associated with the file, specifically the July 14, 1995 sleep study performed at the Gainesville VAMC and other Gainesville VA treatment records that were referenced by the August 2008 VA examiner from 2004 to 2008. Also, the Veteran testified that he was going to try and get records from his private physician who reportedly diagnosed him with sleep apnea soon after his retirement from service. The Veteran did not respond with these records; but as VA is on notice that they exist, VA should make reasonable efforts to obtain them. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to sign the proper release forms including identifying the contact information for Dr. Grenaco and/or Dr. Bernstein, and Shands Hospital (formerly known as North Florida Hospital) and dates of treatment for sleep apnea, as referenced at his Board hearing. If the Veteran complies, attempt to obtain the records and notify the Veteran of any unsuccessful attempts and what further steps VA will make regarding his claim. 2. Make arrangements to obtain treatment records from the VAMC in Gainesville, Florida dated from 1989 to present, relevant to the Veteran's sleep apnea treatment including his July 14, 1995 sleep study, and 2004 treatment with a CPAP mask. If efforts to obtain these records are unsuccessful notify the Veteran and indicate what further steps VA will make regarding his claim. 3. After the above records have been associated with the claims file or scanned into Virtual VA, schedule the Veteran for a VA sleep disorder examination. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner also should assess the following: (a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current diagnosis of sleep apnea had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should acknowledge the Veteran's, his ex-wife's, and fellow service member's statements asserting symptoms in service and since his retirement from service. The examiner also should consider the Veteran's testimony that he complained of sore throats in service due to his sleep apnea and was given throat spray; and the multiple instances in the service treatment records referencing complaints of a sore throat. (b) The examiner also should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current diagnosis of sleep apnea was caused or aggravated beyond the natural progress of the disorder by the Veteran's PTSD. Please provide a complete rationale for your opinions. If you cannot answer the above questions without resorting to speculation or remote possibility, please indicate why that is so. 4. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, readjudicate the claim on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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). _________________________________________________ K. PARAKKAL 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).