Citation Nr: 1337954 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-40 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable rating prior to August 10, 2009, and in excess of 20 percent thereafter for low back strain. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from July 2001 to July 2005. He is the recipient of the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia which, in pertinent part, denied the Veteran's claim for service connection for obstructive sleep apnea. In addition, the Veteran appeals from a November 2009 Decision Review Officer (DRO) decision that granted service connection for a low back strain and assigned an initial noncompensable rating prior to August 10, 2009 and a 20 percent rating thereafter. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims folder associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of the Veteran's representative's October 2013 Appellant's Brief. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). As relevant to both issues, the Board observes that the Veteran was afforded VA examinations in July 2013. At such time, the examiner noted that, in addition to the claims file, she had reviewed the Veteran's VA medical records from the Richmond, Virginia, VA Medical Center. While VA treatment records dated through April 2009 are of record, the examiner specifically cited to a February 2010 MRI of the lumbar spine that is not otherwise contained in the claims file. Moreover, in his April 2011 substantive appeal, the Veteran reported that he had an MRI done and received injections for his spine. As the record clearly reflects that the Veteran has received continuous treatment through the VA healthcare system and records dated subsequent to April 2009 are not contained in the paper claims file or Virtual VA, the Board finds that a remand is necessary in order to obtain all VA treatment records from the Richmond VA Medical Center pertaining to the Veteran's back disability and obstructive sleep apnea dated from April 2009 to the present. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA medical records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Furthermore, as relevant to the Veteran's back disability, he reported at his July 2013 VA examination that he receives acupuncture outside of VA to help relieve his symptoms. Therefore, he should be given an opportunity to identify any private healthcare provider who has treated him for his back disability, to include the facility where he receives acupuncture and, thereafter, such records should be obtained for consideration in his appeal. Additionally, pertaining to his claim for service connection for obstructive sleep apnea, the Veteran contends that such manifested during service and that he had sought treatment for his snoring but was told by medical personnel there was no treatment available. Service treatment records reflect the Veteran's complaints of difficulty breathing in a March 2004 Post-Deployment Health Assessment. The Veteran was provided with a VA examination in July 2013 to determine the etiology of his claimed obstructive sleep apnea. The examiner opined that the Veteran's obstructive sleep apnea was less likely as not related to his service as there were no complaints of the typical symptoms related to such a disability in the treatment records, that there was an absence of statements indicating witnessed snoring and/or apnea and that the Veteran had gained a significant amount of weight after service. The examiner further opined that the Veteran's obstructive sleep apnea was less likely as not related to his service-connected PTSD as there was a plausible alternative explanation for how the Veteran's sleep apnea may have arisen and PTSD did not stimulate or cause structural changes in the airway leading to respiratory obstruction during sleep. However, in his August 2013 Informal Hearing Presentation, the Veteran's representative argued that it was the Veteran's in-service weight gain that was the cause of his obstructive sleep apnea. The representative noted that the Veteran had gained approximately 65 pounds during service and cited to the July 2013 VA examiner's opinion, which attributed the Veteran's obstructive sleep apnea to post-service weight gain, in support of this contention. Furthermore, while the July 2013 VA examiner found that the Veteran's PTSD did not cause his obstructive sleep apnea, a clear opinion regarding whether the former disability aggravated the latter disorder was not offered. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, based on the foregoing deficiencies, the Board finds that an addendum opinion regarding the etiology of the Veteran's obstructive sleep apnea should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the Richmond VA Medical Center pertaining to the Veteran's back disability and obstructive sleep apnea dated from April 2009 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Provide the Veteran with an opportunity to submit or identify any additional private medical records, to include those relating to acupuncture, pertaining to his back disability. Send him the necessary authorizations for the release of any private treatment records. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After obtaining all outstanding records, return the claims file, to include a copy of this remand, to the July 2013 VA examiner for an addendum opinion. If the examiner who drafted the July 2013 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner is requested to provide an opinion regarding the following: (A) Is it at least as likely as not that the Veteran's current obstructive sleep apnea is related to his military service? In this regard, the examiner should consider the Veteran's report of complaints of difficulty breathing in a March 2004 Post-Deployment Health Assessment and comment on the argument presented by the Veteran's representative that the Veteran's in-service weight gain of approximately 65 pounds was the cause of his obstructive sleep apnea. (B) Is it at least as likely as not that the Veteran's current obstructive sleep apnea is aggravated by his service-connected PTSD? In offering an opinion, the examiner must acknowledge that the Veteran is competent to report the onset and continuity of symptomology since service. The examiner should also discuss the rationale for the opinion, whether favorable or unfavorable, if necessary citing to specific evidence of the record. 4. After completing the above, and any other development that may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 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). _________________________________________________ A. JAEGER 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).