Citation Nr: 1614453 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 12-26 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include secondary to sleep apnea. 2. Entitlement to service connection for hypertension, to include secondary to sleep apnea. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to July 1976, from May 1978 to September 1978, and from October 1979 to March 1984. He also had reserve duty. This case is before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a November 2011 rating decision of the VA Regional Office (RO) in Waco, Texas, with jurisdiction later transferred to the RO in Pittsburgh, Pennsylvania. A November 2012 Board videoconference hearing was held. The Board in February 2015 issued a decision/remand, granting service connection for sleep apnea and remanding the remaining claims on appeal. Based on the Veteran's assertions, the issues on appeal are revised to include theories of secondary service connection, as secondary to sleep apnea. See 38 C.F.R. § 3.310(a) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Though an April 2015 VA examiner's opinion appeared to rule out a secondary relationship between diabetes mellitus and now service-connected sleep apnea, and the same between hypertension and sleep apnea, it is incomplete, considering only whether sleep apnea caused another disability and not too whether sleep apnea chronically aggravated disability. An updated opinion is required. This will provide opportunity for the examiner to also address a November 2011 private physician statement that "there is an unmistakable relationship between sleep apnea and hypertension," in part because hypertension is more treatment-resistant when the patient has sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's most recent VA outpatient treatment records and associate these with his Veterans Benefits Management System (VBMS) electronic claims folder. 2. Then return the claims folder to the VA examiner who provided the April 2015 medical opinion on the cause of hypertension and diabetes mellitus, and request a supplemental opinion. The examiner is requested to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is secondarily related to service-connected sleep apnea, on the basis of chronic aggravation. Also opine as to whether diabetes mellitus is secondary to sleep apnea, again considering chronic aggravation. (Aggravation means worsening of a disorder beyond the normal course of progression.) The examiner is further requested to expressly consider and comment upon the significance of a November 2011 private physician, Dr. C.H. MD, postulating an "unmistakable relationship between sleep apnea and hypertension"; and further finding "significant evidence for a syndromic relationship between sleep apnea, diabetes and hypertension" that points to a common causality. If the April 2015 examiner is not available, or is no longer employed by VA, provide the file to a similar situated examiner for review and/or schedule the Veteran for examination by an examiner who has not seen him previously, and that addresses the inquiries set forth above. 3. Review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then readjudicate the claims on appeal in light of all additional evidence received. If any benefit sought on appeal is not granted, the Veteran should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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) (2015).