Citation Nr: 1337177 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-31 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had active service from November 1980 to January 1986, from December 1990 to June 1991, and from December 2001 to June 2003. His service included service in Southwest Asia during Operation Enduring Freedom and Operation Desert Shield/Storm. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal was processed in part using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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 In October 2013 written argument before the Board, the Veteran's representative argues that the March 2008 report of VA examination relied upon by the RO to deny this claim was inadequate fore rating purposes. The Board agrees. In this case, the Veteran contends that his sleep apnea is directly related to his military service. Alternatively, he asserts that his disability is proximately due to, or aggravated by, his service-connected undiagnosed illness, which is characterized as "undiagnosed chronic fatigue with intermittent insomnia, concentration/memory impairments, diarrhea and multiple joint arthralgia of the bilateral knees, shoulders, elbows and hands." The Veteran separated from his last period of active duty service in 2003. VA medical center (VAMC) treatment records demonstrate continued treatment for sleep apnea with the use of a CPAP machine since 2005, with what appears to be initial consultations in April 2005 during which he reported that he had the problem for a few years. In a Statement in Support of Claim dated in September 2007, the Veteran reports, "I complained of sleep problems several times on active duty and my SMRs will contain proof of this." Unfortunately, the Veteran's complete service treatment records (STRs) are unavailable for review. According to an RO Formal Finding of Unavailability memorandum dated January 2008, the "STRs were lost from claims file." A Formal Finding memo dated March 2008 also notes that the STRs are unavailable. The RO did obtain some STRS in July 2011; however, these appear to be incomplete and they do not contain relevant complaints. The Veteran was afforded a VA examination on March 5, 2008. The report includes a diagnosis of sleep apnea, and notes the Veteran's history of "increased fatigue the last time he was on active duty." Despite the Veteran's competent and credible reported history, and his diagnosis of sleep apnea two years after separation, the examiner failed to address whether the Veteran's sleep apnea had its onset during his last period of active duty service. Instead, the examiner merely provided a negative nexus opinion regarding secondary service connection, stating, "The veteran's current sleep apnea is not the result of his CFS [chronic fatigue syndrome]." Furthermore, the examiner did not address whether the Veteran's service-connected undiagnosed illness aggravates his sleep apnea. If a medical examination report does not contain sufficient information to allow an informed decision, 38 C.F.R. § 4.2 requires it be returned as inadequate. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001); see also Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (stating that an inadequate examination frustrates judicial review). In light of the lack of rationale as to direct service connection and aggravation, particularly where the Veteran noted that he had complaints in service and the STRs are noted as lost, the Board that the March 2008 examiner's opinion is inadequate for adjudication purposes. As such, the Board finds the request from the Veteran's representative to schedule the Veteran's for a more comprehensive and thorough examination to be reasonable. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should arrange for the Veteran to be schedule for a VA examination by an examiner with sufficient expertise to determine the etiology of his sleep apnea. The claims folder and any pertinent evidence in the Virtual VA that is not contained in the claims folder must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on review of the pertinent medical history, examination of the Veteran, the Veteran's lay statements, and with consideration of sound medical principles, the examiner should (a) state an opinion as to whether it is as likely as not (there is a 50 percent or better probability) that the disorder of the Veteran's sleep apnea originated in service or is otherwise related to service. The examiner should also (b) provide a complete medical opinion and detailed rationale regarding whether there is a 50 percent or better probability with respect to sleep apnea present during the period of the claim that the disorder was caused by the Veteran's service-connected undiagnosed chronic fatigue with intermittent insomnia, concentration/memory impairments, diarrhea and multiple joint arthralgias. Finally, the examiner should (c) provide a complete medical opinion and detailed rationale regarding whether there is a 50 percent or better probability with respect to sleep apnea present during the period of the claim that the disorder was aggravated by (permanently worsened by) the Veteran's service-connected undiagnosed chronic fatigue with intermittent insomnia, concentration/memory impairments, diarrhea and multiple joint arthralgia. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. In this regard, the examiner's attention is drawn to the Veteran's September 2007 statement in which he indicated that he complained of sleep problems several times on active duty. The examiner must explain the rationale for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. 2. The RO or the AMC should also undertake any other development it determines to be warranted. 3 After the development requested above has been completed to the extent possible, the RO or the AMC should again review the record and re-adjudicate the claim. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and given the requisite opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate action. 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). _________________________________________________ MICHAEL A. PAPPAS 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).