Citation Nr: 1338227 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 09-51 005 ) 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 hypertension and/or exposure to environmental hazards in Southwest Asia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from October 1983 to January 1987 and January 1988 to October 2004, including service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a hearing before the Board. The requested hearing was conducted in July 2013 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. 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 The Veteran seeks entitlement to service connection for sleep apnea. He asserts his sleep apnea is a result of his time in service, to include exposure to environmental hazards during service in Southwest Asia. Alternatively, he asserts his sleep apnea is proximately due to or aggravated by his hypertension. The Board notes that the Veteran is service connected for his hypertension. See November 2004 rating decision. The Veteran's private physician submitted a letter in July 2012. The physician's letter explained there is a connection between obstructive sleep apnea and hypertension, as evidenced in multiple studies. The physician indicated that sleep apnea could often aggravate hypertension. The Board notes that the July 2012 letter supports a relationship of sleep apnea aggravating hypertension. However, in order to support the Veteran's claim, there must be evidence that the Veteran's hypertension has caused or aggravates his sleep apnea. A VA medical opinion was obtained in August 2012. The examiner opined that the Veteran's hypertension is less likely than not causing his sleep apnea, as there is no correlation with hypertension causing obstructive sleep apnea symptoms. The Veteran submitted evidence from the Mayo Clinic, which detailed risk factors for obstructive sleep apnea. Importantly, the article noted that sleep apnea is more common in people with hypertension and hypertension was noted to be a risk factor for sleep apnea. See "Sleep Apnea," Mayo Clinic Staff. As such, the Board finds the July 2012 VA medical opinion inadequate, as it is based on the conclusion that there is no correlation between hypertension and obstructive sleep apnea. A remand is necessary to obtain an addendum opinion that considers the evidence discussed in the Mayo Clinic article that indicates that hypertension is a risk factor for developing obstructive sleep apnea. Furthermore, the Board notes that during the July 2013 Board hearing, the Veteran asserted environmental hazards during his time in the Gulf War caused his sleep apnea. See July 2013 Hearing Transcript, pages 5-7. A fellow service member also submitted a statement in February 2012 regarding the poor air quality experienced during service. In May 2012, a VA examiner opined that the noted geographically induced environment factors were less likely than not applicable anymore since the Veteran returned to the contiguous United States (CONUS). The Board finds this opinion to be inadequate. A medical opinion is necessary that explains whether the environmental factors the Veteran was exposed to during service caused his sleep apnea. This opinion must be supported by an adequate rationale. Furthermore, the Board notes that the May 2012 VA examiner provided a negative opinion based on the lack of treatment or diagnosis of sleep apnea during service. The Court has found that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disability and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). As such, an addendum opinion must be obtained. Any updated treatment records should also be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all updated treatment records. 2. Obtain an addendum VA medical opinion. The examiner must review the record, to include all medical records, lay statements and the articles submitted by the Veteran. In particular, review the Mayo Clinic article that indicates that hypertension is a risk factor for developing obstructive sleep apnea. Then, the examiner should offer an opinion regarding the following: a) Please provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent): that the Veteran's sleep apnea began during service or is causally or etiologically due to service, including whether it is due to exposure to airborne contaminants (dust, smoke, etc.) during his service in Southwest Asia; and, that the Veteran's sleep apnea is proximately due to or aggravated by his hypertension. b) In providing these opinions, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). c) All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The RO should then readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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).