Citation Nr: 1607532 Decision Date: 02/26/16 Archive Date: 03/04/16 DOCKET NO. 14-24 805A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected pansinusitis and allergic rhinitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to May 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011, rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran, through his representative, submitted additional evidence in support of his claim after the denial by the RO, 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) (2015). The Board has reviewed the electronic records maintained in both Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. By way of a July 2015 rating decision, the RO determined that new and material evidence had not been submitted to reopen a claim for service connection for impotence. The appellant thereafter filed a notice of disagreement (NOD) in September 2015 with respect to that decision. As the RO has acknowledged receipt of the NOD and informed the Veteran by way of a December 2015 letter that a decision review officer would review the matter and if the claim could not be granted a statement of the case would issue. This situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable in this case. Therefore, that claim remains under the jurisdiction of the RO at this time. 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 he is entitled to service connection for sleep apnea, to include as secondary to his service-connected pansinusitis and allergic rhinitis. A remand is warranted for the Veteran to be provided an addendum VA opinion. The duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4) (2015). The Veteran was most recently provided a VA examination in February 2011. However, an addendum VA opinion is warranted. The Veteran has raised the issue of whether his sleep apnea may be caused or aggravated by his service-connected pansinusitis and allergic rhinitis. See September 2015 Appellant Brief. In addition, the Veteran through his representative has noted medical literature indicating potential unreliability of the Veteran's sleep study done in service. See Richard P. Millman, MD, & Naomi R. Kramer, MD, Polysomnography in Obstructive Sleep Apnea in Adults (2015). Suggesting that caffeine and alcohol consumption the day of a sleep study may invalidate such results and leave to false negatives. As a result an addendum opinion is warranted to address direct and secondary service connection. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran concerning how he can substantiate his claim on a secondary basis. 2. Appropriate efforts should be made to obtain and associate with the electronic case file any outstanding VA medical records. 3. Thereafter, refer the case to a VA pulmonologist or sleep specialist, if possible, for a medical opinion. The electronic claims folder should be reviewed by the clinician and note in the report that such was accomplished. If evaluation of the Veteran is deemed necessary appropriate arrangements should be made to evaluate the Veteran. After reviewing the electronic claims file and examining the Veteran, if necessary, the clinician should answer the following questions: a. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed sleep apnea had onset in service or is otherwise etiologically related to active military service? The examiner's attention is drawn to the representative's argument of September 2015, which asserts that the Veteran had symptoms in service that were indicative of sleep apnea, such as snoring, daytime fatigue and restless sleep, and that these problems continued after service. The clinician's attention is drawn to the representative's September 2015 brief, which asserts that medical literature notes the potential unreliability of the Veteran's sleep study done in service due to his use of alcohol and caffeine. See Richard P. Millman, MD, & Naomi R. Kramer, MD, Polysomnography in Obstructive Sleep Apnea in Adults (2015). Available at http://www.uptodate.com/contents/polysomnography-in-obstructive-sleep-apnea-in-adults. The clinician should address this study in the opinion. b. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed sleep apnea is due to or caused by his service-connected pansinusitis and/or allergic rhinitis? c. Is it at least as likely as not (a 50 percent probability or greater) that his currently diagnosed sleep apnea was aggravated (i.e., permanently worsened beyond the natural progress) by the Veteran's service-connected pansinusitis and/or allergic rhinitis? 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 or disabilities. The term "as likely as not" (at least fifty percent probability) does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4.Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which 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. S. TOTH 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).