Citation Nr: 1328928 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 06-05 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for the residuals of status post tonsillectomy, claimed as tonsillitis. 2. Entitlement to service connection for sleep apnea, to include as secondary to service connected depression. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from July 1958 to June 1960. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Central Office hearing before the undersigned in December 2010. A transcript of the hearing is associated with the claims file. In April 2011, the Board dismissed the issues of bilateral carpal tunnel syndrome, diabetes, glaucoma and cataracts, and high cholesterol upon the Veteran's request for withdrawal of these issues. The Board denied service connection for hypertension, and remanded ten additional issues for further development. These ten issues were returned to the Board in November 2012. The Board denied service connection for asbestosis, chronic obstructive pulmonary disease, spurring of the cervical and lumbar spine, a left shoulder disability, a left elbow disability, bilateral knee arthritis, a right foot disability, and a left foot disability. The remaining issues of entitlement to service for the residuals of a tonsillectomy and for sleep apnea were remanded for additional development, and have now been returned for additional appellate consideration. The Board has reviewed the Veteran's electronic record (Virtual VA). It does not contain any evidence not already in the claims folder or considered by the RO. Unfortunately, the Board will find it necessary to again REMAND these issues. They are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran contends that he has developed sleep apnea as a result of active service. He claims that his sleep apnea was either caused or aggravated by his service connected depression. In December 2010, the Veteran submitted an internet article from the National Sleep Foundation in support of his contentions. Among other things, this article states that obstructive sleep apnea is linked with depression, and cites to a European study that found that people with depression were five times more like to suffer from sleep-disordered breathing, of which the article notes that the most common form of sleep-disorder breathing is obstructive sleep apnea. The article then cites to a second study that indicates treating obstructive sleep apnea showed improvements in depression. The Veteran was afforded a VA examination of his sleep apnea in May 2011. The examiner states that the Veteran's service treatment records, VA medical records, and private medical records were all reviewed. The examiner also conducted an online review of literature. The examiner opined that the Veteran's sleep apnea was not incurred due to active service. The examiner further opined that the Veteran's sleep apnea was not due to or aggravated by the Veteran's service connected depression. In support of this opinion the examiner cited to an article he discovered during his online review which said that depression was not a known risk factor for obstructive sleep apnea. The Veteran was positive for other risk factors such as obesity, diabetes, and a history of smoking. Unfortunately, the reasons and bases cited by the May 2011 examiner in support of his opinion are inadequate in that they failed to address the information submitted by the Veteran from the National Sleep Foundation. The examiner states that a literature review found that depression was not a risk factor for sleep apnea, but the studies cited by the National Sleep Foundation appear to directly contradict. The examiner did not address this contradiction or make any reference to the article. Therefore, the Board finds that this discrepancy must be addressed. Furthermore, a review of the service treatment records shows that the Veteran completed a Report of Medical History in July 1958 upon entry into active service in which he indicated a history of frequent trouble sleeping and depression or excessive worry. The physician's explanation was that the Veteran had depression and frequent trouble sleeping of a trivial nature. The May 2011 examiner did not note this finding. As the July 1958 Medical Examination completed at entry into service did not contain a diagnosis of sleep apnea or any other sleep disability, the Veteran remains entitled to the presumption of soundness. 38 U.S.C.A. § 1111. However, given the Veteran's current contentions the significance, if any, of this finding must be addressed. Finally, the Board notes that the development requested by the November 2012 remand with respect to the Veteran's claim of service connection for the residuals of status post tonsillectomy has been completed. All requested opinions were provided in a December 2012 VA examination. However, the December 2012 examiner states that the Veteran's 2004 tonsillectomy was performed primarily to treat his sleep apnea. This raises the possibility of service connection for the residuals of a tonsillectomy if service connection were to be granted for sleep apnea. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). These issues are therefore inextricably intertwined and must be considered together. The Board will therefore defer adjudication of this matter until the requested development has been completed. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the examiner who conducted the May 2011 examination of the Veteran's sleep apnea. The examiner should review the May 2011 examination report, as well as the entire claims folder, in particular the information submitted by the Veteran from the National Sleep Foundation pertaining to relationships between depression and sleep-disordered breathing, and the July 1958 Report of Medical History from the Veteran's service treatment records. After the completion of this review, the examiner should provide the following opinions: a) Does the study from the National Sleep Foundation or the July 1958 service treatment record alter the previous May 2011 opinion that the Veteran's sleep apnea was not incurred due to or aggravated by his service connected depression based on the reasoning that depression is not a risk factor for sleep apnea? b) If the answer to (a) is yes, is it as likely as not that, with consideration of the many risk factors noted in the May 2011 examination report, the Veteran's sleep apnea was incurred due to his service connected depression, or underwent a permanent increase in severity due to service connected depression? c) If the answers to (a) is negative, is there clear and unmistakable (undebateable) evidence that the Veteran's sleep apnea existed prior to service? d) If the answer to (c) is positive, is there clear and unmistakable evidence that the sleep apnea did not undergo an increase in severity during service? The reasons and bases for all opinions must be provided. If the examiner is unable to provide the requested opinions, the reasons and bases for this opinion must be provided, and any missing evidence required to provide the opinions should be identified if possible. If the May 2011 examiner is no longer available, the claims folder should be forwarded to an equally qualified doctor in order that they may review the records and provide the requested opinions. No additional examination is necessary unless it is deemed necessary by either the May 2011 examiner or any other examiner who might take his place if the May 2011 examiner is unavailable. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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). _________________________________________________ ERIC S. LEBOFF 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).