Citation Nr: 1613428 Decision Date: 04/01/16 Archive Date: 04/13/16 DOCKET NO. 09-41 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include sleep apnea. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a left hip disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse, N.H. ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1995 to December 2005. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). The issue of entitlement to service connection for a sleep disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. In an August 2015 rating decision, the RO granted the issue on appeal of entitlement to service connection for a left hip disability; therefore, there remains no case or controversy with respect to this issue. 2. In an August 2015 rating decision, the RO granted the issue on appeal of entitlement to service connection for hypertension; therefore, there remains no case or controversy with respect to this issue. CONCLUSIONS OF LAW 1. There is no disputed question of law or fact as to whether service connection is warranted for a left hip disability, and the appeal is dismissed. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.101 (2015). 2. There is no disputed question of law or fact as to whether service connection is warranted for hypertension, and the appeal is dismissed. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.101 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, the Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101(d). Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of law or fact in the determination being appealed. As noted above, the Veteran's claims of entitlement to service connection for a left hip disability and entitlement to service connection for hypertension have already been granted by the RO and there are no remaining allegations of error of law or fact for appellate consideration on these issues. Accordingly, the Board lacks jurisdiction and these appeals will be dismissed. ORDER The appeal of the issue of entitlement to service connection for a left hip disability is dismissed. The appeal of the issue of entitlement to service connection for hypertension is dismissed. REMAND The Veteran's claim of entitlement to service connection for sleep apnea was most recently remanded by the Board in February 2015 to afford him a VA examination and to obtain a medical opinion. Following a May 2015 VA examination, the examiner found that the Veteran's sleep apnea was "less likely than not" due to the Veteran's active duty service. The examiner reasoned that definite risk factors for obstructive sleep apnea included obesity and craniofacial or upper airway soft tissue abnormalities and also explained that the medical records did not demonstrate that the Veteran exhibited symptoms consistent with sleep apnea until 2010 at the time the Veteran underwent a sleep study. Further, the examiner explicitly stated that although the Veteran reported he experienced sleep disturbances while on active duty, "there [was] not objective evidence to support his statements," in the record and the first notations in medical records of any sleep disturbance was in 2008, three years after the Veteran separated from active duty. The Board finds this opinion is flawed for a number of reasons. First, medical records demonstrate that the Veteran first reported sleep disturbances as far back as September 2002. Additionally, a November 2006 medical report documents that although the Veteran experienced trouble falling asleep, he was sleeping ten hours a night, yet still complained of hypersomnolence. Moreover, the May 2015 examiner noted risk factors for obstructive sleep apnea included obesity and craniofacial or upper airway soft tissue abnormalities, yet there is no evidence of record that the Veteran has ever been obese or experienced craniofacial or upper airway soft tissue abnormalities. As such, the medical examiner's opinion appears to be based, at least in part, on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an incomplete or inaccurate factual premise). Further, the examiner's reasoning was based, at least in part, on the lack of documentation of symptoms or treatment during service, and the examiner improperly discounted the Veteran's lay statements regarding his symptoms based solely on the absence of treatment records. See Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (recognizing that lay evidence is potentially competent to support the presence of a disability, including during service, even where not corroborated by contemporaneous medical evidence such as service treatment records); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that lay evidence is competent to establish features or symptoms of injury or illness). Based on the foregoing, the Veteran's claim must be remanded to afford him a new VA examination and to obtain new medical opinions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board notes that in addition to sleep apnea, the Veteran has experienced symptoms of sleep difficulty associated with his service-connected depression. In providing the below requested medical opinion, the VA examiner conducting the examination must, to the extent possible, distinguish between symptoms associated with sleep apnea and symptoms associated with sleep disturbances due to depression. If the examiner is unable to do so, he or she must explain why it is not possible to do so. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. All attempts to secure this evidence must be documented in the claims file by the RO. 2. The Veteran must be afforded the appropriate VA examination, by an examiner other than the May 2015 examiner, to determine whether any sleep apnea found is related to his military service. All pertinent symptomatology and findings must be reported in detail, and any indicated diagnostic tests and studies must be accomplished. The electronic claims file must be made available to the examiner. The examiner must elicit a full medical history from the Veteran regarding the onset and continuity of his symptoms of sleep apnea and/or impairment during and after service. The examiner must be informed he or she may not disregard the Veteran's statements merely because the record contains no corroborating, contemporaneous medical evidence. Based on a clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state: * Whether any currently or previously diagnosed sleep apnea is at least as likely as not (50 percent probability or more) due or began during the Veteran's active duty service. * Whether any currently or previously diagnosed sleep apnea is at least as likely as not (50 percent probability or more) due to or aggravated by any service-connected disorder, to include depression, a neck strain and hypertension. In providing the requested opinions, the examiner must discuss risk factors relating to sleep apnea and whether or not the Veteran's medical records and lay statements demonstrate he has risk factors associated with sleep apnea. Additionally, to the extent possible, the examiner must comment on and distinguish symptoms the Veteran has exhibited due to sleep apnea from those symptoms attributable to sleep disturbances associated with depression. If the examiner is unable to do so, a full explanation for why this is not possible is required. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must ensure the Veteran is notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report and medical opinions must be reviewed by the RO to ensure that they are in complete compliance with the directives of this remand. If deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claim. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs