Citation Nr: 1537633 Decision Date: 09/02/15 Archive Date: 09/10/15 DOCKET NO. 12-25 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected residuals of temporomandibular (TMJ) repair. ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION This appeal was processed using the Veteran's Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the claim. The Veteran had active service from April 1983 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In January 2014, the Board remanded the claim for additional evidentiary development. Specifically, the claim was remanded to obtain the Veteran's updated VA and non-VA medical records, and to obtain an addendum medical opinion addressing the etiology of the Veteran's sleep apnea. The Veteran's outstanding VA treatment records issued at the Jackson and Memphis VA medical centers (VAMCs) have since been associated with the paperless claims file. Also, the AOJ referred the Veteran's claims file to the same VA examiner who evaluated him in July 2012 for an addendum medical opinion. The VA examiner provided an opinion in May 2014, the report of which has been associated with the claims file. The claims file has since been returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his obstructive sleep apnea was caused or aggravated by his service-connected residuals of temporomandibular joint (TMJ) repair. Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2014); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The evidence of record reflects that the Veteran has a diagnosis of obstructive sleep apnea. See July 2012 VA examination report. In addition, by way of the May 2009 rating decision, the RO granted service connection for the Veteran's residuals of TMJ repair. The Veteran was afforded a VA examination in connection to his claimed sleep apnea in July 2012, at which time the examiner confirmed a diagnosis of obstructive sleep apnea and concluded that "[t]he claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition." Although the examiner provided a thorough rationale in support of his conclusion, he did not address whether the Veteran's currently diagnosed sleep apnea was aggravated by his service-connected residuals of TMJ repair. Pursuant to the January 2014 remand, the Board remanded the Veteran's claim for an addendum medical opinion addressing the etiology of the currently diagnosed obstructive sleep apnea, to include whether the sleep apnea was aggravated by the service-connected residuals of TMJ repair. The Veteran's claims file was referred to the same VA examiner who evaluated him at the July 2012 VA examination. Based on his review of the claims file and medical articles, the VA examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In reaching this opinion, the examiner explained that review of the claims file was absent any "documentation of [complaints of] sleep apnea or evaluation while on active duty." He did note that bite guards sometimes aggravate sleep apnea symptoms, referencing a citation for one of the medical articles submitted by the Veteran. He (the examiner) also referenced another study issued through the University of Medicine and Dentistry of New Jersey, which indicated that "[a]n association exists between bruxism, tension headache, and sleep disorders, particularly sleep apnea, in the cramomandibular dysfunction patient" and "[obstructive sleep apnea] is not classified as a sleep disordered breathing related condition. After reviewing the medical internet and journal articles provided by the Veteran in support of his claim, as well as his claims file, the examiner stated that he would not make any changes to the previous July 2012 VA opinion. The examiner went on to list several factors that contribute and cause sleep apnea. Unfortunately, the examiner did not address whether the Veteran's sleep apnea was aggravated as a result of his service-connected residuals of TMJ repair. Although he noted that bite guards can occasionally aggravate sleep apnea symptoms, he appeared to be referencing a medical article rather than specific facts of the Veteran's case when making this assertion. Although the examiner at the July 2010 VA examination in connection to his TMJ residuals noted that the Veteran has to wear an oral appliance to decrease stiffness, the record does not specifically indicate, and the Veteran has not stated, that he currently wears "bite guards." Moreover, in the May 2014 opinion, the VA examiner appears to be making a general statement rather than referring to specific facts derived from the Veteran's case. At this juncture, the Board finds that the evidence of record is insufficient to render a determination regarding whether the Veteran's sleep apnea is secondary to his service-connected residuals of TMJ repair as the examiner still has not addressed whether the Veteran's sleep apnea was aggravated by his residuals of TMJ repair. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Therefore, the Board finds that the Veteran's claim should be remanded once again for an additional VA medical opinion specifically addressing whether the Veteran's obstructive sleep apnea was aggravated as a result of his service-connected residuals of TMJ repair. On remand, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103(a) (West 2014). Bell v. Derwinski, 2 Vet. App. 611 (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of any outstanding treatment for obstructive sleep apnea that the Veteran may have received. The Board is particularly interested in records of treatment that the Veteran may have received at any VA facility since March 2014. All such available documents should be associated with the claims file. 2. The AOJ should refer the claims file (to include both the VBMS and Virtual VA folder), and a copy of this Remand, to the same examiner who evaluated the Veteran in July 2012 and provided the May 2014 addendum opinion, or another appropriate VA physician with appropriate expertise if this examiner is unavailable. Following a review of the record, the examiner should express an opinion as to whether it is at least as likely as not, a 50 percent probability or greater, that the Veteran's sleep apnea was proximately due to, or aggravated by his service-connected residuals of TMJ repair. In providing an opinion, the examiner should discuss whether the Veteran currently wears any oral appliances, to include bite guards, for his TMJ residuals, and if so, whether any of these devices may have aggravated his sleep apnea. If aggravated, specify the baseline of sleep apnea prior to aggravation, and the permanent, measurable increase in sleep apnea resulting from the aggravation. A complete rationale should be provided for all opinions expressed. The VA examiner must provide a thorough and well-reasoned rationale for all opinions provided. If the VA examiner finds that the Veteran's sleep apnea was not caused or aggravated by his service-connected residuals of TMJ repair, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the VA examiner determines that he/she cannot provide an opinion without resorting to speculation, the VA examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (If the examiner determines that another examination is necessary to arrive at any requested opinion, an examination should be scheduled with a VA physician and the Veteran notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claims. See 38 C.F.R. § 3.655(b) (2014). The VA examiner should provide the opinions requested above.) 3. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).