Citation Nr: 1613135 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 09-50 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from July 1961 to July 1985. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in November 2014. This matter was originally on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2014, the Veteran testified at a Board videoconference hearing. A transcript of that hearing is of record. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, the Board remanded the case in November 2014 for additional development. Specifically, the Board directed that the Veteran should be afforded a VA examination by an appropriate specialist. As the issue on appeal is entitlement to service connection for obstructive sleep apnea, the Board would have been satisfied with an opinion by a pulmonologist, an otolaryngologist, or any other physician who indicates that they specialize in obstructive sleep apnea. Unfortunately, it does not appear that the physician who provided the February 2015 medical opinion is an appropriate specialist. In addition, a few days after his VA examination, the Veteran wrote a letter indicating that the examiner did not address why he was there, ask relevant questions, or engage in any conversation attempting to relate sleep apnea with diabetes. The Veteran stated that during the entire visit, the examiner scrolled through her computer, locating sleep records. Unfortunately, the case requires an additional remand. The Board is cognizant of the fact that the Veteran's case has been in adjudicative status for several years, and it has already been remanded. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claim. Accordingly, the case is REMANDED for the following action: 1. The case should be referred to an appropriate specialist (a physician who is a specialist in the treatment or diagnosis of obstructive sleep apnea such as a pulmonologist or otolaryngologist). The physician is to be provided access to the Virtual VA and VBMS and must specify in the report that these records have been reviewed. The physician should provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea is in any way caused by or permanently aggravated by a service-connected disability. If aggravated, the examiner should specify the baseline level of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The examiner should provide a complete rationale for any opinion provided. Note: Service connection has been established for posttraumatic stress disorder (PTSD), valvular heart disease with left atrial and left ventricular enlargement, post traumatic degenerative disc disease of the cervical and lumbar spines, traumatic arthritis of the toes, diabetes mellitus, erectile dysfunction, onychomycosis of the toenails, dermopathy of the lower extremities, tinnitus, left upper arm scars, hypertension, varicose veins both legs, degenerative arthritis both hands, hearing loss, and bilateral inguinal hernia, residuals of lipoma excision right spermatic cord, atrophy of left testicle with varices, facial scars, and postoperative pilonidal cyst. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. In addition, the examiner should address all medical contrary opinions and medical treatise information with information to the contrary. In an October 2007 Neuropsychiatry note, a VA psychiatrist notes that the exact relationship between diabetes and sleep apnea has been unclear but that a relatively small study concluded that obstructive sleep apnea was common in the non-insulin dependent diabetes mellitus and opined that he believed it was as likely as not that exposure to Agent Orange led to diabetes which then led to sleep apnea. In a June 2014 letter, a VA physician states that there was growing evidence of a bi-directional link between diabetes and obstructive sleep apnea and that upon reviewing the Veteran's clinical history and medical record, it was her opinion that obstructive sleep apnea may possibly have been induced by diabetes. 2. After the development requested has been completed, the medical opinion report should be reviewed to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, corrective procedures should be implemented. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ MICHAEL D. LYON 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) (2014).