Citation Nr: 1340607 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 12-03 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a sleep condition to include as secondary to service connected disability. 2. Entitlement to service connection for a stomach condition to include as secondary to service connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas that in relevant part denied the above claims. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure 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 Board must remand the claim for service connection for a sleep condition and service connection for a stomach condition, for a VA medical examination. A disability that is proximately due to, the result of, or chronically aggravated by a service-connected disease or injury is considered service-connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a) and (b) (2013). Establishing service connection on this secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA's duty to assist under the VCAA includes providing an examination for a medical nexus opinion when necessary to fairly decide a claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was never afforded a VA examination and opinion that addresses the extent of his claimed sleep condition and stomach condition, or whether those conditions are secondarily service connected. In January 2012, the Veteran stated that his sleep condition and stomach condition were caused by the medications he took for his service connected coronary artery disease, depression, and diabetes mellitus. A September 2012 VA medical treatment record indicates that the Veteran was treated for insomnia and dyspepsia, though no opinion was provided as to the etiology of the conditions. The Board finds a VA examination is warranted to address the Veteran's theory of entitlement. For the foregoing reasons, the Board finds that a VA examination should be issued concerning the Veteran's claim for a sleep condition and stomach condition. The examiner should offer an opinion as to whether there is a current sleep disability and stomach disability and if so, whether they are caused or aggravated by the Veteran's service connected coronary artery disease, depression, diabetes mellitus, or his treatment thereof. All lay and medical evidence should be considered. Also, the Veteran should be provided with VCAA notice on the elements necessary to establish service connection for a disability on a secondary basis. Accordingly, the case is REMANDED for the following action: 1. The AMC should obtain updated VA treatment records. Any response received should be memorialized in the Veteran's VA claims file. 2. The AMC should provide the Veteran with VCAA notice on the elements necessary to establish service connection for the claimed disabilities on a secondary basis. 3. The AMC should also contact the Veteran to determine whether he has received any additional private treatment for his sleep condition or stomach condition, and if so, take steps necessary to obtain these records. Any response received should be memorialized in the Veteran's VA claims file. 4. After obtaining any available VA and private treatment records, the Veteran should be scheduled for VA examinations with the appropriate medical professionals to first identify any and all current sleep conditions and stomach conditions. The VA examiners should each thoroughly review the Veteran's claims file and note this has been accomplished in the VA examination reports. For any diagnosed sleep condition and stomach condition, the VA examiner should state whether it is at least as likely as not that the Veteran's service connected disabilities (coronary artery disease, depression, and diabetes mellitus) including medications taken to treat these disabilities (i) caused or (ii) aggravated (i.e., permanently worsened beyond the normal progress of the underlying disorder) any of his current sleep conditions and stomach conditions. If aggravation is found, the examiner should indicate (1) the baseline manifestations of the Veteran's sleep conditions and stomach conditions absent the effect of aggravation, and (2) the increased manifestations that are proximately due to the service connected coronary artery disease, depression, and diabetes mellitus or medications taken to treat these disabilities. Accordingly, the examiners must discuss the rationale of the opinions provided, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record, including the Veteran's competent and credible lay testimony. 5. Then, the AMC should readjudicate the claims on the merits. If the benefit sought is not granted, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ TANYA A. SMITH 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).