Citation Nr: 1330945 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-00 118A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. 2. Entitlement to an evaluation in excess of 30 percent for migraine headaches due to head trauma. 3. Entitlement to an evaluation in excess of 10 percent for syncope (formerly seizure disorder) due to head trauma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from March 1972 to June 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 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 service connection for sleep apnea and increased evaluations for migraine headaches and syncope, both service-connected secondary to in-service head trauma. Additional development is necessary prior to a Board decision on the merits of these issues. With respect to the Veteran's service connection claim, Veteran asserts that his service-connected headaches and seizures resulted in the diagnosis of sleep apnea. The Agency of Original Jurisdiction (AOJ) has not provided the Veteran with notice regarding the evidence necessary to establish service connection on a secondary basis. As such, a remand is required to provide the Veteran such notice, and afford him an opportunity to submit evidence in support of his secondary service connection claim. While on remand, the Veteran should also be provided a VA examination to determine if his currently diagnosed sleep apnea is etiologically related to active service or is proximately due to or aggravated by his service-connected migraine headaches and/or syncope. See generally 38 C.F.R. §§ 3.159(c)(4), 3.303, 3.310 (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). With respect to the Veteran's increased evaluation claims, the Board observes both migraine headaches and syncope have been service connected as secondary to in-service head trauma. The diagnostic criteria pertaining to traumatic brain injury (TBI) residuals may be applicable to the Veteran's claim. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2013). However, to date, the Veteran has not been provided an examination utilizing the current TBI examination guidelines. In order to allow the Board to fully ascertain the severity of the Veteran's service-connected disabilities, he should be afforded such an examination on remand. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any recent treatment records pertaining to the disabilities on appeal that have not been associated with the claims file or scanned into Virtual VA including any updated VA treatment records from the Columbia VAMC dated since September 2010. 2. Provide the Veteran appropriate notice that includes an explanation as to the information or evidence needed to establish a secondary service connection claim with respect to the claim of service connection for sleep apnea. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's currently diagnosed sleep apnea. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Any necessary testing should be accomplished. After reviewing the record and examining the Veteran, the examiner should address the following: a. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's sleep apnea is etiologically related to his active service? b. If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that the Veteran's sleep apnea is proximately due to (caused by) his service connected migraine headaches and/or syncope? c. If (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that the Veteran's sleep apnea has been aggravated (chronically worsened beyond normal progression) by his service-connected migraine headaches and/or syncope? A complete rationale must be provided for all opinion(s) expressed. 4. Schedule the Veteran for a VA examination to ascertain the severity of his service-connected migraine headaches and syncope. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Any necessary testing should be accomplished. All pertinent symptomatology and findings should be reported in detail utilizing the current Compensation and Pension Examination TBI Examination Guidelines. The examiner is asked to specifically address whether the Veteran's service-connected migraine headaches and syncope represent residuals of a TBI and, if so, the degree to which the service-connected TBI disability is manifested by facets of cognitive impairment including to memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. 5. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). _________________________________________________ SARAH B. RICHMOND Acting 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).