Citation Nr: 1330151 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-25 243 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1974 to September 1977. In addition, he had periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) with the Army Reserve from 1977 to 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the RO. A review of the Virtual VA paperless claims processing system reveals that there are VA treatment records and the September 2013 appellate brief associated with the electronic claims file. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Board finds that additional evidentiary development is necessary prior to adjudication of the merits of the claims. Specifically, the Board finds that missing treatment records need to be identified and associated with the claims file and VA examinations and medical opinions must be ordered in connection with the claims to ascertain current findings and etiology. See 38 C.F.R. § 3.159(c). First, the Board finds that the RO should take proper action to obtain copies of medical records pertaining to service in the Army Reserve. The record shows that, in June 2007, the RO made a first request to obtain treatment records for the Veteran's extended period of Reserve service. A negative response was received and VA issued a finding of unavailability in August 2007. In a statement accompanying the Veteran's VA Form 9 Substantive Appeal, the Veteran indicated that he was informed by the NPRC that his medical records had been forwarded to VA. The Board notes that service treatment records dated up to September 1994 are present in the record. The Veteran has reported being treated for sleep apnea in 1996 and 1997 for sleep apnea and for hypertension from September 1993 to November 1997 at Fr. Jackson. He also noted that the service treatment records in 1982 and 1986 recorded "hypertension readings" and that his sleep apnea and snoring started in service. Finally, he reported exhibiting "very high" blood pressure readings during "Active Reserve Duty" in April 1997 and being treated at Ft. Jackson. The Board finds that, given these assertions, an additional effort to pursue any missing records covering the Veteran's Reserve service should be made. In a statement submitted in June 2009, a physician reported treating the Veteran since 1997. The physician noted that hypertension had been diagnosed in September 1997 and opined that the Veteran had a "history of hypertension while on active duty." He also noted that the Veteran had been seen at Ft. Jackson for possible hypertension and had been on medication for twelve years. The Veteran also has submitted medical records showing that he was diagnosed by the Florida Centers of Sleep Medicine in November 2002 with severe sleep apnea/hypopnea syndrome. The Veteran requires CPAP treatment. The service treatment records reveal that the Veteran complained of shortness of breath during the night in June 1977 while serving on active duty. A fellow serviceman and the Veteran's spouse have also submitted statements attesting to his history of snoring and the tendency for him to "choke in his sleep" during the period that he service in the Army Reserve. Given this evidence, after attempting to locate any outstanding service treatment records, VA examinations should be scheduled in order to determine that the likely etiology of the claimed sleep apnea and hypertension. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated steps in order to obtain copies of any outstanding service treatment records pertaining to the Veteran's service in the Reserve, particularly after 1994. This should include any records of treatment during a reported period of "Active Reserve Duty" at Ft. Jackson in 1997. The efforts to obtain such records should continue until it is determined that the records do not exist or that further efforts to obtain the records would be futile. Efforts undertaken should be clearly documented and noted in the record. 2. The RO then should take appropriate action to contact the Veteran in order to have him identify all medical treatment rendered by VA or non-VA health care providers for the claimed sleep apnea and hypertension. Based on the Veteran's response, the RO should attempt to obtain copies of all records from any identified treatment source, including the Veteran's private treating physician beginning in 1997. If VA attempts to obtain any outstanding records are unavailing, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. The RO also should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed sleep apnea. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be reviewed by the examiner in conjunction with the examination. The examiner should elicit from the Veteran and record a complete medical history referable to the claimed sleep apnea. After examining the Veteran and reviewing the entire record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current sleep apnea had its clinical onset during the Veteran's period of active service from 1974 to 1977 or during any subsequent period of service in the Reserve. 4. The RO also should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed hypertension. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be reviewed by the examiner in conjunction with the examination. The examiner should elicit from the Veteran and record a complete medical history referable to the claimed hypertension. After examining the Veteran and reviewing the entire record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the current hypertension had its clinical onset during his period of active service or during a subsequent period of service in the Reserve or underwent an increase in severity beyond natural progression, if pre-existing, during a reported period of "Active Reserve Duty" in 1997 when treated at Ft. Jackson. NOTE: As per VA regulations, 38 C.F.R. § 4.104 , Diagnostic Code 7101, Note 1 defines hypertension as diastolic blood pressure predominantly 90 mm. or greater, and isolated systolic hypertension as systolic blood pressure of predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. A complete rationale should accompany any opinion provided. In all conclusions, a discussion of the facts and medical principles involved will be of considerable assistance to the Board. The examiner is requested to explain the medical basis or bases for his or her opinions, based on the evidence of record, his or her clinical experience, medical expertise, and sound medical principles. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefits sought of appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ STEPHEN L. WILKINS 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) (2013).