Citation Nr: 1325922 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-15 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to sinusitis, hypertension, and hypertensive heart disease. 2. Entitlement to a compensable rating for sinusitis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from May 1976 to August 1976 and from May 1978 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure a total review of the evidence. 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 is seeking entitlement to service connection for sleep apnea and to a compensable rating for service-connected sinusitis. Following a complete review of the evidence of record, the Board finds that the claims must be remanded for additional development. As to the Veteran's sleep apnea claim, the Veteran contends that his current sleep apnea was caused or aggravated by his service-connected sinusitis, hypertension, and/or hypertensive heart disease. Specifically, the Veteran asserted in his January 2011 notice of disagreement that his primary care provider had told him that these three disabilities were associated with sleep apnea. In addition, the Veteran contended that, "Medical literature clearly states sinusitis can cause sleep apnea." Prior to these statements, the Veteran was afforded a VA examination in October 2010 and in the resulting examination report the examiner concluded that the Veteran's sleep apnea was not aggravated by his sinusitis, as the examiner was unaware of any association between sleep apnea and sinusitis. In light of the Veteran's claims and contentions, the Board concludes that another VA examination is necessary to consider whether his sleep apnea was caused or aggravated by his service-connected disabilities, to include sinusitis, hypertension, and hypertensive heart disease. As to the Veteran's claim for a compensable rating for his service-connected sinusitis, the Board notes that the Veteran stated in his January 2011 notice of disagreement that his sinusitis caused one capacitating episode per year. In his June 2011 substantive appeal, the Veteran indicated that he had more than six non-incapacitating episodes of sinusitis per year. The most recent VA examination report of record, from September 2010, by contrast indicated that the Veteran had no incapacitating episodes and no episodes of sinusitis that required prolonged treatment. In light of this apparent discrepancy, the Board concludes that another VA examination is required to consider the current severity of the Veteran's service-connected sinusitis. In addition, an effort must be made to associate with the claims file VA treatment records from May 2011 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records and hospitalization records from all appropriate VA facilities from May 2011 to the present. Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records. 2. After the above evidence is obtained, to the extent available, schedule the Veteran for an appropriate VA examination for sleep apnea. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, conducting a physical examination, and any other testing deemed necessary, the examiner should render an opinion as to whether it is at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran has a sleep apnea disability that has been either (1) caused or (2) aggravated by a service-connected disability, particularly the Veteran's service-connected sinusitis, hypertension, and hypertensive heart disease disabilities. In that regard, the examiner is requested specifically to consider, and address as necessary, the Veteran's contention that medical literature and his primary care provider indicate that sinusitis, hypertension, and hypertensive heart disease can cause sleep apnea. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete rationale for any opinion provided. 3. After 1. above is completed, to the extent possible, schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected sinusitis disability. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims file must be provided to the examiner for review in conjunction with the examination and the examiner should note that it has been reviewed. The examiner should discuss all symptoms and findings necessary to adequately rate the Veteran under the appropriate diagnostic code(s). Any and all opinions must be accompanied by a complete rationale. 4. After the above is complete, readjudicate the Veteran's claims. If a complete grant of the benefits requested as to each issue is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).