Citation Nr: 1327257 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 13-15 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from January 1987 to February 1996 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision of the Hartford, Connecticut, Regional Office (RO). In October 2012, the Veteran testified at a hearing before a Decision Review Officer and, in August 2013, before the undersigned Veterans Law Judge. 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 March 2012 VA sleep apnea examiner's opinion does not reflect adequate consideration of the competent statements of the Veteran and others on his behalf regarding his sleep apnea symptomatology. Another etiological opinion based on consideration of all competent medical and lay evidence must be obtained. The Veteran maintains hypertension secondary to sleep apnea but service treatment records document at least two elevated blood pressure readings. The Veteran must be provided a VA examination and direct and secondary etiological opinions obtained. Selective private treatment records have been submitted by the Veteran but VA must attempt to obtain all relevant records from these facilities and providers, and ascertain whether he has obtained any relevant VA treatment. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf the records of (A) T. Doherty, M.D., P. Licata, D.O., and O. Robertson, D.C.; and (B) Advanced Chiropractic and Sports Therapy, Gold Coast Pulmonary and Sleep Associates, LLC, and Southeastern Connecticut Medical Associates, related to his claimed sleep apnea and hypertension disabilities. 2. Ask the Veteran to indicate whether he has received any VA treatment for sleep apnea and hypertension and, if so, obtain the outstanding VA treatment and/or hospitalization records. Any negative response(s) must be in writing and associated with the claims folder. 3. Then, schedule the Veteran for a VA sleep apnea examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner must specifically rule out or diagnose sleep apnea. If the disability is diagnosed, the examiner is to opine whether it is at least as likely as not (i.e., probability equal to or greater than 50 percent) that the disability: (i) had onset in service or within one year of separation, specifically considering the symptomatology described by the Veteran; or (ii) is related to military service or any event therein. The provided examination report must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's statements; January 2010 and November 2010 private sleep studies; the October 2010 statement of chiropractor C. Chapman; the December 2010 statement of Dr. T. Doherty; the January 2011 statement of Dr. P. Licata; etc.) and set forth a complete rationale for all findings and conclusions. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). 4. Then, schedule the Veteran for a VA hypertension examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner must specifically rule out or diagnose hypertension. If the disability is present, the examiner is to opine whether it is at least as likely as not (i.e., probability equal to or greater than 50 percent) that the disability: (i) had onset in service or within one year of separation; (ii) is related to military service or any event therein; or (iii) is caused or aggravated by sleep apnea. The provided examination report must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's statements; June 1990 and February 1995 service treatment records; the October 2010 statement of chiropractor C. Chapman; the December 2010 statement of Dr. T. Doherty; the January 2011 statement of Dr. P. Licata; etc.) and set forth a complete rationale for all findings and conclusions. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). 5. Then, readjudicate the appeal. If either benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The Veteran 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). _________________________________________________ RONALD W. SCHOLZ 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).