Citation Nr: 1333360 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-17 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected Bell's palsy. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a video conference hearing before the undersigned in April 2012. A transcript of the hearing is associated with the claims file. In August 2012 and May 2013, the Board remanded the case for additional development. 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 contends that his service-connected Bell's palsy, rated as 20 percent disabling, interferes with his use of a continuous positive airway pressure (CPAP) machine to treat his obstructive sleep apnea, thereby aggravating his sleep apnea. Alternatively, he contends that his Bell's palsy disability caused obstructive sleep apnea. Having reviewed the entire claims file, including the electronic, Virtual VA claims file, the Board finds that additional development is required before deciding the claim. In a statement made in support of a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, the Veteran indicated that he was receiving disability benefits from the Social Security Administration (SSA) due to his various disabilities, most of which were service-connected. The AMC/RO should obtain those records and associate them with the claims file. The Veteran also testified in April 2012 that he received treatment for sleep apnea from Drs. DeLuca and Gugnani, including a sleep study within the past year. The AMC/RO should request treatment records from D. DeLuca, M.D., dated from August 1994 to the present and from M. Gugnani, M.D., dated from June 2010 to the present. Ongoing treatment records from the Fort Dix VA Community Based Outpatient Clinic (CBOC) dated from March 2013 to the present should also be obtained. After these records, and any others identified by the Veteran, are obtained to the extent possible, the Veteran's claims file should be provided to a somnologist or pulmonologist to obtain a medical opinion as to whether the Veteran's service-connected Bell's palsy caused or aggravates his obstructive sleep apnea, which was diagnosed in June 1999. A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Additionally, if aggravation is found, only the increase in severity of the nonservice-connected sleep apnea that is proximately due to Bell's palsy will be service connected. 38 C.F.R. § 3.310(b). Thus, the baseline and current levels of severity for sleep apnea must be established as well as any increase in severity due to the natural progress of the disease, so that the increase attributable to Bell's palsy can be determined. Accordingly, the case is REMANDED for the following action: 1. Obtain ongoing VA treatment records from the Fort Dix VA CBOC dated from March 2013 to the present. 2. Obtain the Veteran's SSA disability records and associate them with the claims file. 3. The AMC/RO should contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claim of service connection for obstructive sleep apnea, to include as secondary to service-connected Bell's palsy. The AMC/RO should attempt to obtain and associate with the claims folder any medical records identified by the Veteran that are not already of record. In particular, the Veteran should be advised to submit complete treatment records from D. DeLuca, M.D., dated from August 1994 to the present, and from M. Gugnani, M.D., dated from June 2010 to the present, or authorize the AMC/RO to obtain them on his behalf. 4. After the above development has been completed to the extent possible, provide the Veteran's claims folding to a VA somnologist or pulmonologist for the purpose of obtaining additional medical opinion evidence. Following a review of the claims file, the VA examiner should answer the following questions: a. Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current sleep apnea was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected Bell's palsy, to include as due to interference with the use of a CPAP machine? b. What is the baseline severity of the Veteran's sleep apnea in terms of the relevant diagnostic code? Currently, the relevant criteria for rating sleep apnea are: i. asymptomatic but with documented sleep disorder breathing ii. persistent, with day-time hypersomnolence iii. requiring the use of a breathing assistance device such as continuous airway pressure (CPAP) machine iv. manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requiring tracheostomy See 38 C.F.R. § 4.97, Diagnostic Code 6847. c. What is the current severity of the Veteran's sleep apnea in terms of the relevant diagnostic code? If the current severity of the Veteran's sleep apnea is equal to the baseline severity, the examiner should so state. A medical analysis and rationale are to be included with all opinions expressed. 5. After completion of the above, the AMC/RO should adjudicate the claim of entitlement to service connection for obstructive sleep apnea, to include as secondary to Bell's palsy. If the benefit sought is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board. The appellant 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. 2013). _________________________________________________ Thomas H. O'Shay 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) (2013).