Citation Nr: 1325786 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-29 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for sleep apnea as secondary to service-connected disabilities. ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1993 to July 1994 and from December 2003 to February 2005. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The appeal has been before the Board in July 2012 and April 2013, at which time the issue of service connection for sleep apnea was remanded for medical opinions addressing the etiology of the disability. As noted in the previous remands, in a June 2010 statement, the appellant specifically limited his appeal of the denial of service connection for sleep apnea to the question of whether his sleep apnea is secondary to his service-connected disabilities, to particularly include his medication for those disabilities, including oxycodone and hydromorphone. 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 issue of entitlement to service connection for sleep apnea must again be remanded for a clarification of the opinion included in the August 2012 sleep apnea examination report. The Board regrets the additional delay that this remand necessitates. The Board remanded the claim of entitlement to service connection for sleep apnea as secondary to service-connected disabilities most recently in April 2013, seeking an addendum opinion, as the August 2012 examination report addressing the relationship between the sleep apnea disorder and the Veteran's service-connected disabilities failed to include a rationale in support of the etiology opinion provided. In the April 2013 remand, the Board informed the examiner that the ensuing addendum must be fully articulated and based on sound reasoning. See Nieves-Rodriguez, 22 Vet. App. at 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). While the examiner's May 2013 addendum did include a rationale in support of her opinion that the Veteran's medications did not impact his sleep apnea, she did not fully address the Veteran's full history of prescription medication used to treat his service-connected disabilities. The Board particularly notes that the Veteran has at times been prescribed at times during the appeal certain benzodiazepines for his anxiety (which is an aspect of his service-connected major depression, as explained in the March 2009 rating decision), which may be contraindicated for sleep apnea. As indicated in May 2009 treatment notes (found in the Virtual VA record), despite being instructed to avoid benzodiazepines due to his sleep apnea, it is apparent that he was continued on a prescription of diazepam, and was later switched to clonazepam. He was also prescribed certain psychotropics, which the treatment notes indicate could impact his sleep apnea. The examiner should on remand provide an opinion supported by a complete rationale addressing whether any medications prescribed for any of the Veteran's service-connected disabilities have caused or aggravated his sleep apnea disorder. Further, the examiner's opinions to date have insufficiently indicated why the service-connected conditions themselves have not caused or aggravated the Veteran's sleep apnea. Although she described what sleep apnea is and how it affects an individual's ability to sleep in the August 2012 opinion, the examiner has not addressed how symptoms of other service-connected conditions, such as the pain related to fibromyalgia and a spine disorder (which the Veteran has frequently indicated has impacted his ability to sleep), affect the sleep apnea disorder. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who performed the August 2012 sleep apnea examination for an addendum opinion regarding the etiology of the Veteran's sleep apnea. If the August 2012 examiner is no longer available, VA should determine whether a new examination is necessary, or whether a medical opinion without a new examination would address the questions presented. If a new examination is necessary, then one should be provided. The examiner should review this remand, the claims file, and all relevant records associated with the Veteran's Virtual VA electronic file. The addendum should indicate that this review occurred. The examiner should opine whether it is at least as likely as not (a 50 percent chance or greater) that the sleep apnea is caused or aggravated (permanently made worse) by the service-connected thoracolumbar myositis and lumbosacral disc disease with a bulging disc at L5-S1, fibromyalgia, major depressive disorder, or irritable bowel syndrome, to include any medications taken for these disorders. The examiner should specifically address the types of side effects of the Veteran's prescription medication regimen and otherwise provide the medical bases for any opinion entered. Specific discussion of the impact, if any, of diazepam and clonazepam should be undertaken. The impact, if any, of psychotropics, should also be discussed, as appropriate. The Board stresses that the examiner should not solely focus on the impact of medications taken for service-connected disorders, but also must opine as to whether it is at least as likely as not that the other service-connected disabilities themselves (to include their symptoms, such as pain) have caused or aggravated the sleep apnea disorder. A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide a requested opinion without resort to speculations, she should indicate why such a response would be speculative. 2. The RO should review the examination report to ensure that it is adequate and comply with the directives contained in this remand. If the report is inadequate in any manner, the RO should take immediate corrective action. 3. After completion of the above and any additional development deemed necessary, the issue on appeal must be reviewed with consideration of all applicable laws and regulations. If the claim is not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case concerning this claim and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The appellant 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). _________________________________________________ MICHAEL D. LYON 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).