Citation Nr: 1342272 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 12-24 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968, in Vietnam from January 1967 to May 1967, and he received the Purple Heart for injuries incurred in the line of duty. A review of the Virtual VA paperless claims processing system shows documents on that are either duplicative of the evidence of record or not pertinent to the present appeal. The Veterans Benefits Management System (VBMS) does not include any documents. 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 was afforded a VA medical examination in June 2012 that was inadequate as the examiner did not address direct service connection and all service-connected disabilities. Under the duty to assist, a new VA medical examination is warranted to determine the nature and etiology of the sleep apnea, to include as secondary to all service-connected disabilities. 38 C.F.R. § 3.159 (2013). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide or identify any outstanding records, to include records pertaining to the private sleep study performed in approximately 1998. He should be asked to authorize the release of any outstanding non-VA medical records. Associate any records obtained with the Veteran's claims folder or electronic record. 2. Obtain VA treatment records dating from May 2012. 3. If, after making reasonable efforts to obtain any outstanding non-Federal records the AMC is unable to secure same or if after continued efforts to obtain Federal records the AMC concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 4. After completing the above development, obtain a VA medical opinion to determine the nature and etiology of the sleep apnea, to include as secondary to all of the Veteran's service-connected disabilities. If the clinician feels that an examination is necessary in order to provide the requested opinions then one should be scheduled. Make the claims file available to the clinician for review of the history. The clinician should note that this case review took place. The clinician is asked to opine on the following: (a) whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the Veteran's sleep apnea began in or is related to military service. (b) whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the Veteran's sleep apnea was caused by any of the following service-connected disabilities: 1. tracheotomy scar; 2. residuals of shell fragment wound, abdominal wall and liver; 3. residuals of shell fragment wound, right chest with laceration of diaphragm and right lung; 4. diabetes mellitus, type II; 5. tinnitus; 6. left lower extremity small fiber diabetic neuropathy associated with diabetes mellitus, type II; 7. right lower extremity small fiber diabetic neuropathy associated with diabetes mellitus, type II; 8. residuals of fracture, multiple ribs; 9. erectile dysfunction associated with diabetes mellitus, type II. Please address all service-connected disabilities. (c) whether it more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the Veteran's sleep apnea was aggravated (i.e., worsened) beyond the natural progress by any of the following service-connected disabilities: 1. tracheotomy scar; 2. residuals of shell fragment wound, abdominal wall and liver; 3. residuals of shell fragment wound, right chest with laceration of diaphragm and right lung; 4. diabetes mellitus, type II; 5. tinnitus; 6. left lower extremity small fiber diabetic neuropathy associated with diabetes mellitus, type II; 7. right lower extremity small fiber diabetic neuropathy associated with diabetes mellitus, type II; 8. residuals of fracture, multiple ribs; 9. erectile dysfunction associated with diabetes mellitus, type II. Please address all service-connected disabilities. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's sleep apnea, found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to any of the following service-connected disabilities. The examiner's opinion should be based on the results of the examination, a review of the evidence of record, and sound medical principles. The examiner should provide complete rationale for all opinions expressed. The examiner is advised that the Veteran is competent to report his symptoms and history. 5. After completing all necessary development, readjudicate the claim on appeal. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. The appellant 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. 2013). _________________________________________________ S. S. TOTH 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).