Citation Nr: 1602168 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 14-23 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran; the Veteran's Wife ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1960 to June 1963 and from to September 1963 to September 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter was previously remanded by the Board in August 2015 for further evidentiary development. The Veteran has a current power of attorney form appointing the American Legion as his representative. In February 2015, the Veteran submitted a statement indicating he wished to revoke his power of attorney in favor of the American Legion. However, four months later at his hearing, American Legion was recognized as the Veteran's representative by the presiding Acting Veterans Law Judge and proceeded to represented him at the hearing. Neither the American Legion nor the Veteran objected to this representation. As such, the Board finds that the current power of attorney form is still valid, and American Legion is still the Veteran's appointed representative. The Veteran and his wife testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ) in June 2015. A transcript of the hearing is associated with the electronic claims file. The Veteran submitted additional evidence in support of his claim after at his June 2015 hearing, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c). The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The issues of entitlement to increased ratings for gastritis and hypertension, and entitlement to service connection for type II diabetes mellitus and a hiatal hernia have been raised by the record in the June 2014 substantive appeal, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The August 2015 Board remand directed the RO to take appropriate action to obtain additional treatment records and schedule the Veteran for a VA examination to determine the etiology of the Veteran's sleep apnea. The Board requested the examiner to answer the following questions: a) Is it at least as likely as not (a fifty percent probability or greater) that sleep apnea was caused by hypertension? b) If hypertension did not cause sleep apnea, is it at least as likely as not (a fifty percent probability or greater) that sleep apnea was aggravated (permanently worsened beyond its natural progression) by hypertension? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of sleep apnea by the service-connected disability. c) If not, is it at least as likely as not (a fifty percent probability or greater) that sleep apnea disability is otherwise related to the Veteran's active duty service? A detailed rationale for the opinion must be provided. Review of the entire electronic claims file is required; however, attention is invited to the Veteran's August 1966 report of medical history where he endorsed trouble sleeping at separation, and the June 2015 testimony from the Veteran and his wife concerning snoring and other symptoms in service. Pursuant to the remand directives, the Veteran was scheduled for and attended a November 2015 VA examination. The examiner addressed the first and second questions with respect to whether the Veteran's sleep apnea was secondary to his hypertension and whether his sleep apnea was aggravated by his hypertension. However, the examiner's response to the third question, whether the Veteran's sleep apnea is directly related to his military service, needs clarification. Firstly, the examiner concluded that the Veteran's sleep apnea "clearly and unmistakably existed prior to service." As the Board did not pose this question to the examiner, it is unclear how he determined that the Veteran's sleep apnea preexisted service. As a result, clarification is needed with respect to that determination. Secondly, after concluding the condition preexisted service, he did not use the proper standard of whether such disorder clearly and unmistakably (obviously or manifestly) was not aggravated (increased in severity beyond the natural progression of the disability) during his active duty service. Finally, the examiner did not specifically address the Veteran's August 1966 report of medical history where he endorsed trouble sleeping at separation, and the June 2015 testimony from the Veteran and his wife concerning snoring and other symptoms in service, as directed by the August 2015 Board remand. As a result, remand is required to ensure compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Return the claims file to the November 2015 VA examiner. If that examiner is not available, return the file to an examiner of appropriate knowledge and expertise to determine the etiology of the Veteran's sleep apnea. It is up to the discretion of the examiner to determine if an examination is necessary, or in the alternative, a medical opinion based upon a thorough records review is adequate. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination and/or opinion. The examination report must indicate that the claims file was reviewed in conjunction with the report. a) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that sleep apnea was caused by hypertension? b) If hypertension did not cause sleep apnea, provide an opinion as to whether it is it at least as likely as not (i.e., a probability of 50 percent or greater that sleep apnea was aggravated (permanently worsened beyond its natural progression) by hypertension? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of sleep apnea by the service-connected disability. c) Provide an opinion as to whether the Veteran's sleep apnea clearly and unmistakably (obviously or manifestly) existed prior to his active duty service. If such a determination is made, please thoroughly address how this conclusion was reached. Then address either d) and/or e) below, as appropriate: d) If the Veteran's sleep apnea did not clearly and unmistakably exist prior to his active duty service, provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the condition originated during, or is etiologically related to, his active duty service. Be sure to address the Veteran's August 1966 report of medical history and his wife's statements with respect to snoring. e) If the Veteran's sleep apnea did clearly and unmistakably exist prior to his active duty service, provide an opinion as to whether such disorder clearly and unmistakably (obviously or manifestly) was not aggravated (increased in severity beyond the natural progression of the disability) during his active duty service. Be sure to address the Veteran's August 1966 report of medical history and his wife's statements with respect to snoring. It is requested that the examiner use the standard of clear and unmistakable where appropriate in rendering his/her opinion. A complete rationale for any opinion expressed should be provided in a legible report. In doing so, the examiner should reconcile any contrary medical evidence of record. Review of the entire electronic claims file is required; however, attention is invited to the Veteran's August 1966 report of medical history where he endorsed trouble sleeping at separation, and the June 2015 testimony from the Veteran and his wife concerning snoring and other symptoms in service. 2. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any other development deemed appropriate, the RO will re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A. C. MACKENZIE Acting 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) (2015).