Citation Nr: 1340208 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-13 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1971 to February 1974, from January 2003 to January 2004, and with additional periods of service with the Army National Guard. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). In pertinent part of that rating decision, the RO denied service connection for obstructive sleep apnea. In January 2011 and September 2011, the Board remanded the matter on appeal to the Agency of Original Jurisdiction (AOJ) for additional development, to include providing the Veteran with a VA examination and obtaining a medical opinion that showed consideration of other opinions of record, including the opinion that service records may have shown symptoms of obstructive sleep apnea. Unfortunately, the Board's directives have not been substantially completed; therefore another remand is warranted for compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to insure a total review of the evidence. 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 seeks entitlement to service connection for obstructive sleep apnea. As noted above, this matter was previously remanded by the Board in January 2011and again in September 2011. Unfortunately, the record does not reflect substantial compliance with the Board's remand instructions and additional development is needed. Where the remand instructions of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The file contains statements from Dr. B., dated in April 2009 and October 2009, indicating that a review of the Veteran's medical records showed that he suffered from symptoms of obstructive sleep apnea while on active duty. In these medical statements, however, Dr. B. failed to identify or discuss which of the Veteran's service treatment records indicated that he had symptoms of obstructive sleep apnea. In January 2011, the Board remanded the matter on appeal finding that a VA medical opinion was needed to determine whether the Veteran's obstructive sleep apnea had an onset in service or was otherwise related to his period of service. The Board specifically instructed the VA examiner to comment on the April 2009 and October 2009 medical statements from Dr. B, indicating that a review of the Veteran's medical records showed that he suffered from symptoms of obstructive sleep apnea during his period of active service. The Board remanded this matter again in September 2011 to provide a examination and obtain a medical opinion as to the likelihood that the Veteran's sleep apnea was related to service. The Board specifically asked the examiner to identify and discuss whether any of the Veteran's service treatment records indicate symptoms of obstructive sleep apnea. The Board reiterated its instructions in the September 2011 remand. The Board also asked both examiners to consider the Veteran's lay statements Pursuant to the Board's remand instructions, the Veteran was afforded with VA examinations in February 2011 and October 2011. The February 2011 VA examiner, a nurse practitioner, concluded that it was less likely as not that the Veteran's obstructive sleep apnea was a result of or caused by his period of active military service. In support of her medical conclusion, the VA examiner stated that a review of the claims filed did not show any sleep or breathing problems during his active and reserve military service. The examiner further noted that although there may have been a prior history of snoring, there was no documentation of such symptomatology in the military records. The October 2011 examiner, a staff physician, reiterated the opinion provided in February 2011. The February 2011 VA examiner failed to address Dr. B.'s medical conclusion that the Veteran's medical records indicate an onset of his obstructive sleep apnea during his period of active service. The October 2011 examiner briefly addressed Dr. B.'s medical conclusion. It does not appear, however, that either examiner considered the Veteran's lay statements in conjunction with providing medical conclusions. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (providing that where a Veteran has provided credible lay testimony, and that lay testimony has not been rejected, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). Since the February 2011 and October 2011 examination reports lack the requested well-supported medical opinion as to whether the Veteran's obstructive sleep apnea had an onset during his period of service or is otherwise related to his period of service, the Board finds that a new VA medical opinion is warranted. On remand, the Veteran should be afforded with a new VA examination, with a pulmonary or respiratory specialist, to obtain another medical opinion to determine whether the Veteran's obstructive sleep apnea had an onset in service or was otherwise related to his period of service. The examiner is asked to specifically identify and discuss if any of the Veteran's service treatment records indicate symptoms of obstructive sleep apnea. The examiner is also asked to consider the Veteran's reported history of symptomatology since his period of service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should seek to identify and obtain any VA and/or private records of pertinent medical treatment that are not yet on file. All records and responses received should be associated with the claims file. 2. After all the available records have been associated with the claims folder, the RO/AMC should schedule the Veteran for a VA examination, with a pulmonary or respiratory specialist, to determine the nature and likely etiology of his sleep apnea. The claims file and pertinent records on Virtual VA should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. The examiner should indicate this fact in the examination report. The examiner should perform all studies deemed appropriate, and set forth the findings in detail in the examination report. Following a review of the record and examination of the Veteran, the examiner should render an opinion as to whether it is at least as likely as not (or the evidence is at least in approximate balance) that the Veteran's sleep apnea had an onset during service, or that it is otherwise related to service. In so doing the examiner must comment on any other opinions of record and note whether any of the Veteran's service treatment records indicate symptoms of obstructive sleep apnea. For purposes of the medical opinion sought, the examiner must specifically consider the following: * The Veteran has provided credible lay statements that his sleep apnea related symptoms date back to service. His statements must be addressed in the rationale. * Dr. B. has provided an unsupported medical conclusion that a review of the Veteran's medical records showed that he suffered from symptoms of obstructive sleep apnea during his period of active service. * The fact that symptoms or treatment may not have been documented during service or in the first post-service year is not fatal to a Veteran's claim for service connection, especially when other evidence may show a link to service. A full rationale is requested for all opinions expressed by the examiner. If the examiner is unable to provide a requested opinion, he or she should explain why. 3. After the above has been completed, the RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If the report does not include adequate responses to the specific opinions requested, it must be returned to the examiner(s) for corrective action. 4. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the Veteran's claim for service connection for obstructive sleep apnea. If the claim remains denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. 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). No action is required of the Veteran until further notice. The Board will take this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).