Citation Nr: 1338722 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-07 171 ) 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 service-connected asthma. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2002 to July 2003. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from a May 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Jurisdiction was subsequently transferred to the RO in Waco, Texas after the Veteran relocated and that RO certified the appeal to the Board in June 2013. 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 A remand is necessary to obtain a supplemental medical opinion addressing whether service-connected asthma aggravates obstructive sleep apnea. Secondary service connection means that disability which is "proximately due to or the result of a service-connected disease or injury" shall be service connected. 38 C.F.R. § 3.310(a) (2013). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(b) (2013). The Veteran was granted service connection for asthma in a September 2003 decision. VA treatment records document that the Veteran was diagnosed with obstructive sleep apnea following a sleep study in November 2009. In March 2010, VA obtained a medical opinion addressing the question of whether sleep apnea is related to the Veteran's service-connected asthma. The resulting medical opinion focused solely on causation, stating that "there is no indication that asthma or its treatment could cause [the Veteran's sleep apnea]." (emphasis added). The examiner concludes that the Veteran's sleep apnea "is less likely as not (less than 50/50 probability) caused by or a result of asthma." (emphasis added). The above opinion fails to address whether the Veteran's service-connected asthma aggravates his sleep apnea. Accordingly, the Board finds the March 2010 examination to be inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records since March 2013 and associate such records with the claims file. If no records are obtained, obtain a negative response and associate such response with the claims file. 2. Return the claims folder to the VA examiner who provided the March 2010 opinion, or if she is unavailable to another examiner for review of the claims file. The examiner must provide an opinion, including a complete rationale for any and all conclusions reached, as to whether it is as least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea is aggravated by the Veteran's service-connected asthma disability. If the examiner finds that it is as least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea has been aggravated by the Veteran's service-connected asthma disability, the examiner must also provide an opinion as to the baseline level of severity of the Veteran's sleep apnea prior to any such aggravation. The term "aggravated" refers to a permanent worsening of the underlying condition beyond the natural progression of the disease, as contrasted with temporary or intermittent flare-ups of symptomatology which resolve with return to baseline level of disability. 3. Upon completion of the above, readjudicate the issue of entitlement to service connection for sleep apnea. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration as appropriate. 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). _________________________________________________ M. TENNER 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).