Citation Nr: 1520023 Decision Date: 05/08/15 Archive Date: 05/19/15 DOCKET NO. 11-00 105A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for sleep apnea, claimed as a sleep condition secondary to posttraumatic stress disorder (PTSD) and/ or undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active duty service from August 1986 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran and his wife testified at a hearing before a Decision Review Officer (DRO) at the RO in November 2011. A transcript of that hearing has been associated with the electronic folder documents. The Board remanded this case in August 2014 for additional development. The case is now returned for appellate review. The issue of service connection for a lung disorder has been raised by the record in a November 2011 statement from the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that further remand is necessary in this case for additional development. The Board previously remanded this case, as review of the Veteran's claims file showed that in March 2014 the Veteran submitted a new medical release form for Dr. W.R., which noted that he had been treated by Dr. W.R. from 2009 to March 2014 and had undergone two sleep studies during that time. At that time the claims file contained medical records for Dr. W.R. only dated from May 2010 through September 2010. Additionally, there was only one sleep study in evidence. As such, the Board remanded the case so that the RO could obtain any outstanding medical records including from Dr. W.R. from 2009 to present and medical records from Apnea Specialists from 2010 to present, as well as updated VA medical records. Then the RO was to make arrangements for an addendum opinion from the March 2014 VA examiner should additional records be found. The Board also noted that should the complete records not be obtained, the Veteran should be so notified by identifying the outstanding records, explaining the efforts to obtain them, and describing any further action to be taken. In response to the Board's remand, in September 2014, the RO sent Dr. W.R. a letter asking for treatment records for the Veteran dated from January 1, 2009 to September 22, 2014. The RO also sent the Veteran a letter in September 2014 noting its request for the treatment records from Dr. W.R. and notifying the Veteran that ultimately it was his responsibility to ensure that VA received the records. The letter also noted that that if VA did not hear from the Veteran, VA might make a decision on the claim after 30 days. In response to the request, Dr. W.R.'s office submitted records, but the only new record was dated in December 2010 and was unrelated to sleep apnea. Even though the Board had instructed the RO to notify the Veteran if the complete records could not be obtained, the only notice the Veteran received regarding the records from Dr. W.R. was that records from his office had been received by VA on October 6, 2014. Also, there is no record that the RO contacted Apnea Specialists for records dated from 2010 to present for copies of any additional sleep studies other than the one of record in July 2010. These deficiencies must be remedied on remand. See Stegall v. West, 11 Vet. App. 268 (1998) (Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated.). In addition, the opinion provided by the VA examiner in March 2014 (which is located in Virtual VA records) as well as the addendum opinion in February 2015 does not address that the Veteran complained of ear, nose, and throat problems at discharge from service on his January 1991 report of medical history. As this information is pertinent to the Veteran's claim, it should be considered in a supplemental opinion. Finally, the VCAA notice letter addressing the sleep condition claim dated in December 2009 does not include the criteria for substantiating a service connection claim, secondary to a service-connected disability or the criteria for substantiating a claim based on undiagnosed illness secondary to Gulf War service. This must be remedied on remand, as well. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter addressing his service connection claim for sleep apnea, to include the criteria necessary to substantiate the claim as secondary to his service-connected PTSD, as well as secondary to an undiagnosed illness related to his Persian Gulf War service. 2. Ask the Veteran to identify any additional, recent treatment records pertaining to his sleep apnea. 3. Make arrangements to obtain any additional, relevant treatment records from the VAMC in Oklahoma City dated from September 2014 to present. 4. Notify the Veteran that complete treatment records from Dr. W.R. dated from 2009 to June 2010 and from December 2010 to 2014 were not obtained; briefly explain the efforts made to obtain those records; and describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 5. Make arrangements to obtain any additional records from Apnea Specialists including any additional sleep studies other than the one in July 2010. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 6. After the above development has been completed, the AOJ should refer the Veteran's claims folder to the March 2014 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for an addendum medical opinion regarding the Veteran's sleep apnea disorder. Only if deemed necessary by the VA examiner is an actual examination necessary. The examiner also should provide an opinion as to the following: (a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea was caused, or aggravated (permanently worsened), by the Veteran's service-connected PTSD. If the sleep apnea was aggravated by the Veteran's service-connected PTSD, then please state to the extent possible the baseline level of severity of the sleep apnea before the onset of any aggravation. (b) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea was caused by any event, disease, or injury in service, including exposure to chemicals and fumes, etc. from his Gulf War service and/ or first manifested in service. In making these assessments, the examiner should review the Veteran's complete records, and specifically consider the following: (1) the Veteran complained of ear, nose, and throat problems at discharge from service on his January 1991 report of medical history; (2) the Veteran's wife submitted statements in December 2011 and March 2014 that she had lived with the Veteran for 19 years (since approximately 1995) and had noticed the Veteran's symptoms of stopping breathing at night; (3) the Veteran's testimony at the RO hearing in November 2011 that his snoring started in Germany (prior to his Gulf War service) but that he did not seek treatment until 2000; (4) medical opinion from Dr. W.R. in November 2011 that the Veteran's breathing issues are highly consistent with exposure to partially burned hydrocarbons in the atmosphere and breathing air contaminated with such; (5) previous VA medical opinions in March 2014 and February 2015; and (6) any newly obtained medical records, to include a possible second sleep study. The examiner is advised that the Veteran and his wife are competent to report his symptoms and his reports must be considered in formulating the requested opinion. If the Veteran's or his wife's reports are discounted, the examiner should provide a rationale for doing so. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 7. Next, review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner(s) for completion of the inquiry. 8. Finally, readjudicate the claim on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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 2014). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).