Citation Nr: 1328101 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-31 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus and/or posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. The Board remanded the case for further development in May 2013. The case has since been returned to the Board for appellate review. 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 finds that further development is necessary prior to final adjudication of the Veteran's claim. The Veteran contends that his current sleep apnea is related to his active service or, alternatively, secondary to his service-connected diabetes mellitus and/or PTSD. In response to the Board's March 2012 remand, the Veteran was afforded a VA examination in May 2012. The examiner determined that the Veteran's sleep apnea was not related to service and was not caused by his diabetes mellitus. In response to the Board's May 2013 remand, a clarifying opinion was requested to provide an aggravation opinion as related to diabetes mellitus, as well as to address whether the Veteran's PTSD caused or aggravated his sleep apnea. In a June 2013 opinion, a different VA examiner determined that it was less likely than not that sleep apnea was caused or aggravated by either diabetes mellitus or PTSD. In so finding, the examiner noted that the Veteran had a PTSD-related sleep disturbance, which was accounted for in the rating of that disability. However, the opinion is unclear as to whether this PTSD-related sleep disturbance could have resulted in any additional difficulties with or aggravated the Veteran's sleep apnea. Moreover, the Board notes that the Veteran's representative submitted an article suggesting an association between psychiatric disorders and sleep apnea as part of a June 2013 written submission. The representative indicated that the article was submitted in response to finding of the June 2013 VA examiner that there was no causal link between PTSD and sleep apnea. However, no medical professional has reviewed this evidence and specifically discussed the article in relation to this particular case. See Sacks v. West, 11 Vet. App. 314, 317 (1998) ("This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional."). For these reasons, the Board finds that a clarifying medical opinion is necessary in this case. In addition, the Board notes that the article was not submitted with a waiver of the RO's initial consideration, and it is unclear if the RO/AMC had an opportunity to review this submission in the first instance. As such, the additional evidence must be referred to the RO/AMC for review and preparation of a Supplemental Statement of the Case, if a grant of the benefit sought is not made. Lastly, it does not appear that the Veteran has been adequately notified of the evidence necessary to substantiate a claim for service connection on a secondary basis. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (failure by Board to enforce compliance with VA notice requirements of 38 U.S.C.A. § 5103(a) is remandable error). As such, the Veteran should be provided proper notice on remand. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran with all outstanding, necessary notice for his claim. The letter should specifically inform him of what evidence is necessary to substantiate a claim for service connection on a secondary basis. 2. The RO/AMC should also refer the Veteran's claims file to the June 2013 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's sleep apnea. The examiner is requested to review all pertinent records associated with the claims file, including an article submitted by the Veteran in June 2013. Specifically, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea was caused or aggravated by the service-connected diabetes mellitus and/or PTSD. The examiner is asked to consider the medical article submitted by the Veteran in June 2013 suggesting a link between psychiatric disorders and sleep apnea in rendering the opinion. In rendering this opinion, examiner is also asked to clarify whether the PTSD-related sleep disturbance noted in the May 2013 opinion resulted in any difficulties with the Veteran's sleep apnea or if this is a symptom unrelated to sleep apnea. In addition, it should be noted that the May 2012 VA examination report references a medical history for a different veteran ("Entry Number 3: Dated 01/25/2001"), as found in an unrelated Board decision of record in this case. While the final opinion in this examination report does not provide an etiology opinion based on these facts, it is again noted that this history is for an individual other than the subject Veteran of this claim. As such, the examiner is asked to disregard the facts related to this entry and should provide any additional, necessary opinion if the examiner determines that one is necessary to resolve this discrepancy in the record. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 3. After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the case should be reviewed by the RO/AMC on the basis of additional evidence, to include the medical article submitted by the Veteran's representative in June 2013. If the benefits sought are not granted, the Veteran 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). _________________________________________________ JESSICA J. WILLS 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).