Citation Nr: 1605027 Decision Date: 02/09/16 Archive Date: 04/01/16 DOCKET NO. 11-01 813 DATE FEB 09 2016 On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD S. Krunic, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1978 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In an August 2011 decision, the Board denied reopening the issues of entitlement to service connection for a low back disorder, a bilateral foot disorder, and residuals of a traumatic brain injury and denied service connection for bilateral hearing loss. The issues of entitlement to service connection for a bilateral leg disorder, acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a gastrointestinal disorder, a sleep disorder, and neck disorder were remanded to the RO for further development. In a December 2011 rating decision, the RO granted service connection for bilateral knee strain. The RO notified the Veteran that this was considered a full grant of the appeal issue regarding a bilateral leg disorder. In a July 2014 decision, the Board denied service connection for an acquired psychiatric disorder, to include PTSD, denied service connection for a sleep disorder, denied service connection for a neck disorder, to include degenerative disc disease of the cervical spine, and remanded the issue of entitlement to service connection for a gastrointestinal disorder and the issue of compensation under 38 U.S.C.A. § 1151 for a heart disability. The Veteran appealed the July 2014 decision to the United States Court of Appeals for Veterans Claims (Court). By order dated April 2015, the Court granted a Joint Motion for Remand (JMR), vacating the July 2014 Board decision regarding the issues of entitlement to service connection for a sleep disorder and for a cervical spine disorder, and remanding the case for compliance with the terms of the JMR. In an August 2015 decision, the Board denied the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a heart disability. In addition, the Board remanded the issues of service connection for a sleep disorder and gastrointestinal disorder for further development and adjudicative action. The case has been returned to the Board for further appellate review. The Board notes that the Veteran filed a September 2015 substantive appeal following the RO's August 2015 Statement of the Case for the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for upper extremities condition, to include tingling in upper extremities. This issue has not yet been certified to the Board and is thus not before the Board at this time. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans' Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Remand is necessary to obtain an addendum medical opinion with respect to the issue of entitlement to a sleep disorder, to include as secondary to a service-connected disability. The Veteran was afforded an October 2015 VA examination in which the examiner opined that the diagnosed obstructive sleep apnea was not related to active service. The examiner did not, however, provide an opinion regarding the diagnoses of upper airway resistance syndrome and mild breathing related sleep disorder contained in the 2012 VA treatment records. Remand is necessary to obtain an addendum medical opinion with respect to the issue of entitlement to a gastrointestinal disorder, to include as secondary to a service-connected disability. The Veteran has contended that he has a gastrointestinal disorder related to service or in the alternative, due to medications for his service-connected disabilities. The Veteran was afforded a VA examination in September 2014 at which time he was diagnosed with GERD and constipation. The examiner noted that the Veteran's main physical problem was his neck condition but that he was not service-connected for it. However, since that examination, the Veteran has been service connected for degenerative disc disease of the cervical spine and cervical radiculopathy of the bilateral upper extremities. The evidence of record indicates that the Veteran takes Gabapentin for pain related to his cervical spine disorder. See October 2015 VA examination. The September 2014 examiner stated that medical literature supports constipation as a side effect of Gabapentin. Thus, the Board finds that an opinion is necessary to ascertain whether the Veteran's medication for his service-connected cervical spine disability causes constipation, or any other gastrointestinal disorder, in this case. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination, any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Obtain and associate with the virtual claims file all outstanding records of treatment from the VA Nebraska Western Iowa Health Care System. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion from the September 2014 examiner. Provide an examination if the examiner decides one is warranted. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. An explanation for the opinion expressed must be provided. The examiner must state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's GERD and constipation was either caused or permanently aggravated by medication for his service-connected cervical spine degenerative disc disease and cervical radiculopathy. 4. After any additional records are associated with the claims file, obtain an addendum opinion from the October 2015 examiner. Provide an examination if the examiner decides one is warranted. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. An explanation for the opinion expressed must be provided. The examiner must state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's mild breathing related sleep disorder and upper airway resistance syndrome began during service or is otherwise related to active service. 5. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, an SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). K. MILLIKAN 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).