Citation Nr: 1337619 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-27 207 ) 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 service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from March 1969 to November 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was most recently before the Board in May 2013 and was remanded for additional development. In April 2010, the Veteran testified via videoconference at a hearing before the undersigned. A copy of the hearing transcript is of record. A July 2013 rating decision granted service connection for dermatitis and assigned an initial rating of 10 percent, effective August 23, 2007. The Veteran has not expressed disagreement with the July 2013 RO decision. 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 asserts, in pertinent part, that his sleep apnea is related to service-connected disability. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted for a condition that has been caused or aggravated by a condition for which service-connection has already been established. 38 C.F.R. § 3.310 (2013). In the May 2013 remand, the Board directed that VA afford the Veteran a VA examination to address the medical matters presented by this issue. In accordance with that Remand, the Veteran underwent a VA examination in June 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The June 2013 VA examiner did address the questions of whether the Veteran's sleep apnea was related to the Veteran's active service or was caused or aggravated by his service-connected hypertensive cardiovascular disease/hypertension. In discussing the medical literature pertinent to the Veteran's sleep apnea claim, however, the June 2013 VA examiner stated that nasal congestion was a potential risk factor for obstructive sleep apnea. The Board observes that the Veteran's service-connected disabilities, in addition to hypertensive cardiovascular disease and hypertension, include sinusitis and rhinitis. The Veteran's sinusitis disability is characterized as "sinusitis with residual headaches, congestion and irritable eyes." By stating that nasal congestion is a potential risk factor (as opposed to a definite risk factor) for sleep apnea, the Board finds that the June 2013 VA examiner's comment triggers VA's duty to afford the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Upon remand, such an examination must be scheduled. Finally, the most recent VA treatment records associated with the claims file are from May 30, 2013. To ensure that a complete record is before VA adjudicators, relevant VA treatment records since that date must be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records pertaining to relevant treatment of the Veteran since May 30, 2013 and associate them with the claims file. 2. Schedule the Veteran for a VA examination that addresses the issue of service connection for sleep apnea. The claims file must be made available for review, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate the examination report as to whether the claims file was reviewed. The examiner is asked to provide opinions as explained below. These opinions must include a rationale. A mere recitation of facts and a conclusion is not adequate. The examiner is asked to accomplish the following: a). Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea was caused by his service-connected sinusitis or rhinitis. b). Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea has been aggravated by his service-connected sinusitis or rhinitis. The term "aggravated" in this context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the sleep apnea (i.e., a baseline) before the onset of the aggravation, as well as after the aggravation. 3. Ensure that the examination report is in compliance with this Remand. If there is any discrepancy take immediate corrective action. 4. Then readjudicate the issue on appeal. If the benefit sought is not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity for response thereto. Thereafter, the case should be returned to the Board, as appropriate. The Veteran 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). _________________________________________________ JAMES G. REINHART 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).