Citation Nr: 1332911 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-04 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to April 1987 and from January 1990 to April 1998. The current matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2012, the Veteran and his spouse testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A remand is necessary in this case so that VA can meet its duty to assist the Veteran in substantiating his claim by providing an adequate medical examination and obtaining an adequate expert medical opinion. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4) (2013). A May 2008 VA polysomnography report documents a diagnosis of severe obstructive sleep apnea. Of record is a November 2008 letter in which a fellow serviceman, with the initials "S.M.," reported that he roomed with the Veteran while on temporary duty assignment and recalled that the Veteran snored loudly and gasped for air in his sleep. Also of record is a November 2008 statement from the Veteran's former spouse in which she reported that the Veteran would wake in the night unable to breath and that he would fall asleep during the day. In a statement dated that same month, the Veteran reported that he had known "S.M." since 1987 and had been with his former spouse since 1989. This evidence has been submitted to show that his sleep apnea had onset during active service. At the October 2012 hearing, the Veteran testified as to his belief that his service-connected hypertension, lumbar degenerative joint disease with history of strain, and cervical degenerative joint disease with history of strain caused his sleep apnea. October 2012 Hearing Transcript at 16. He also expressed his belief that exposure to aircraft fumes and smoke during service caused his sleep apnea. Id. at 4. VA provided a relevant examination and obtained a medical opinion in January 2009. The examiner limited the opinion to an explanation of the causes, in general, of sleep apnea, and a statement that the Veteran's hypertension did not cause his sleep apnea. On its face, the opinion is inadequate with regard to the effect, if any, of the Veteran's hypertension on his sleep apnea because the examiner did not address whether the Veteran's hypertension aggravated his sleep apnea. See 38 C.F.R. 3.310 (2013). Also significant is that the examiner did not address whether the Veteran's sleep apnea had onset during his active service or was directly caused by his active service. Finally, there is no expert medical evidence as to whether the Veteran's sleep apnea was caused or aggravated by his service-connected lumbar spine and cervical spine disabilities. Once VA provides an examination and obtains an expert opinion in the context of a claim for VA disability benefits, it must ensure that the examination and opinion are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, a remand is necessary so that VA can provide an adequate examination and obtain an adequate opinion. Additionally, associated with the claims file are VA treatment records, the most recent of which are dated from February 2008. On remand, any relevant records of VA treatment of the Veteran after February 2008 must be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a Veterans Claims Assistance Act of 2000 notice letter pertaining to the issue of entitlement to service connection for sleep apnea, asserted to be secondary to a service-connected disability. 2. Obtain and associate with the claims folder records of any VA treatment that the Veteran may have received for his sleep apnea since February 2008. 3. Then, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of his sleep apnea. The claims file must be provided to the examiner, and the examiner must review the claims file in conjunction with the examination and annotate his or her report that the claims file was reviewed. Any testing deemed necessary should be accomplished. The examiner must opine: (a) as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea had onset during active service, which ended in April 1998, or was caused by active service, to include due to in-service exposure to aircraft fumes and smoke. In doing so, the examiner must explain the significance of the November 2008 letters in which "S.M." and the Veteran's former spouse described their relevant observations. (b) as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected hypertension, lumbar degenerative joint disease with history of strain, and/or cervical degenerative joint disease with history of strain caused his sleep apnea. (c) as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected hypertension, lumbar degenerative joint disease with history of strain, and/or cervical degenerative joint disease with history of strain worsened his sleep apnea beyond its natural progression. If the examiner determines that that the Veteran's service-connected hypertension, cervical spine disability, or lumbar spine disability worsened his sleep apnea beyond its natural progression, the examiner must provide an opinion as to the baseline level of his sleep apnea but for the worsening by the service-connected disability(ies). A complete rationale for all opinions expressed must be provided. 4. Then, readjudicate the issue on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the matter to the Board, if in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2013). He has the right to submit additional evidence and argument on the matters that 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).