Citation Nr: 1610900 Decision Date: 03/17/16 Archive Date: 03/23/16 DOCKET NO. 09-51 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to hypertension and/or exposure to environmental hazards in Southwest Asia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran had active service from October 1983 to January 1987 and January 1988 to October 2004, including service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2013, a video conference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claim file. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While the Board regrets the delay involved in remanding this case again, it is also of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim and to ensure compliance with the Board's prior remand. See 38 C.F.R. § 3.159 (2015); Stegall, 11 Vet. App. at 271. A November 2013 Board decision remanded the case for additional development. Specifically, the Board remanded the case for a medical opinion to determine whether the Veteran's sleep apnea was caused or aggravated by his service-connected hypertension. The Veteran's private physician submitted a letter in July 2012 explaining that there is a connection between obstructive sleep apnea and hypertension, as evidenced in multiple studies. The physician indicated that sleep apnea could often aggravate hypertension. The Board noted that the July 2012 letter supports a relationship of sleep apnea aggravating hypertension. However, in order to support the Veteran's claim of entitlement to service connection for sleep apnea, there must be evidence that the Veteran's hypertension has caused or aggravates his sleep apnea. Thus a new opinion was required to determine the relationship between the Veteran's sleep apnea and service-connected hypertension. In addition, the Board noted that during the July 2013 Board hearing, the Veteran asserted that environmental hazards during his time in the Gulf War caused his sleep apnea. See July 2013 Hearing Transcript. A fellow service member also submitted a statement in February 2012 regarding the poor air quality experienced during service. In May 2012, a VA examiner opined that the noted geographically induced environment factors were less likely than not applicable anymore since the Veteran returned to the contiguous United States (CONUS). The Board found this opinion to be inadequate. On remand, the Board requested a medical opinion that explains whether the environmental factors the Veteran was exposed to during service caused his sleep apnea. Furthermore, the Veteran submitted two articles discussing the relationship between hypertension and sleep apnea: an article by Johns Hopkins Bloomberg School of Public Health and an article by Mayo Clinic. On remand, the VA examiner was asked to discuss the Mayo Clinic article in his or her opinion. In December 2013, a medical opinion was issued. The examiner stated that the specific Mayo article submitted by the Veteran was not provided to him but that he reviewed the Mayo clinic staff report on obstructive sleep apnea updated to July 13, 2013. A review of that article and the Veteran's case file led the examiner to opine that hypertension does not cause obstructive sleep apnea. The examiner did not render an opinion regarding whether the Veteran's hypertension aggravated his sleep apnea, and the examiner did not address the question of whether or not the environmental factors the Veteran was exposed to during service caused his sleep apnea. Therefore, the Board finds the December 2013 medical opinion does not substantially comply with the remand instructions. The Board has no recourse but to remand the claim again to ensure that the previously requested development is completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following actions: 1. The Veteran's claims file should be forwarded to an appropriate VA physician to give an addendum opinion as to each of the following questions: (a) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's sleep apnea began during service or is causally or etiologically due to service, including whether it is due to exposure to airborne contaminants (dust, smoke, smoke, etc.) during his service in Southwest Asia. (b) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's sleep apnea is caused by his service-connected hypertension. (c) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's sleep apnea is aggravated by his service-connected hypertension. In providing the above opinion, the examiner must review the exact Mayo Clinic and Johns Hopkins Bloomberg School of Public Health articles submitted by the Veteran in July 2012. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should cite to the medical and lay evidence of record, and discuss the particulars of the Veteran's medical history and the relevant medical sciences that apply to this case, including the use of any medical literature, which may reasonably explain the medical guidance in the study of this case. If it is not possible to provide the requested opinions without resort to speculation, the consulting physician should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the consulting physician should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 2. After completing the above development, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. (CONTINUED ON NEXT PAGE) 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 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). _________________________________________________ WAYNE M. BRAEUER 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).