Citation Nr: 1628821 Decision Date: 07/20/16 Archive Date: 08/01/16 DOCKET NO. 10-29 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to December 1976, November 1990 to June 1991, and February 2003 to December 2003 with additional service in the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO). The February 2009 rating decision also denied entitlement to service connection for erectile dysfunction. The Veteran submitted a March 2009 notice of disagreement, initiating his appeal. However, this claim was granted by the RO in a June 2010 rating decision, resolving the appeal. Therefore, this claim is no longer within the Board's jurisdiction. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Following a review of the Veteran's electronic claims file it appears that a service treatment record (STR) was not scanned properly into the record. An undated STR titled "Adult Preventative and Chronic Care Flowsheet" lists the Veteran's chronic illnesses. However, the page appears to be cut off on the left side and is unreadable. Therefore, the claim must be remanded in order to associate the complete page with the Veteran's electronic claims file. The Board finds the evidence of record discussed below indicates that the Veteran's currently diagnosed sleep apnea could be etiologically related to his active service, or to his service connected disabilities of posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), and asthma. Therefore, the claim must be remanded in order to obtain a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of record indicates the possibility of the Veteran's active service to include exposure to environmental hazards could be etiologically related to his sleep apnea. The Veteran's STRs contain a November 2003 post deployment health assessment which noted the Veteran reported feeling tired after sleeping during and after his deployment to Iraq. In a September 2010 statement the Veteran referenced a letter sent by VA which indicated the widespread use of burn pits in Iraq, where the Veteran had been deployed, and noted their health risks. In November 2015 the Veteran submitted an article titled "Sleep Disorders Linked to Burn Pit Environmental Pollution," which reported a causal connection between exposure to open air burn pits in Iraq and sleep apnea. The Veteran provided additional articles entitled "Sleep disorders and associated medical comorbidities in active duty military personnel" and "Sleep Disorders in U.S. Military Personnel: A High Rate of Comorbid Insomnia and Obstructive Sleep Apnea" indicating that a high rate of veterans experience post service sleep impairment. The evidence of record also indicates the possibility of the Veteran's currently diagnosed sleep apnea being etiologically related to his service-connected PTSD. The Veteran provided several articles in July 2014 and November 2015, which linked PTSD and sleep disturbances in Veterans. See "Hard Day's Night: VA Helps Veterans Find Peaceful Slumber," "PTSD Sleep Research: An Update," and "Good Sleep is fundamental to Good Health." The Veteran has also provided articles in July 2014 and November 2015 indicating that his service connected TBI could be etiologically related to his sleep apnea. See "Sleep disturbances among soldiers with combat related traumatic brain injury" and "Sleep and Traumatic Bain Injury." Moreover, there is evidence that the Veteran's service-connected asthma could be etiologically related to his currently diagnosed sleep apnea. A March 2007 VA treatment record noted the Veteran suffered from asthma with sleep apnea, appearing to possibly link the two conditions. Additionally, in November 2015 the Veteran provided articles which state that sleep apnea and asthma could be etiologically linked. See "Obstructive Sleep Apnea Significantly Increases Risk of Severe Asthma," "Asthma Tied to Sleep Apnea," and "Asthma Tied to Higher Risk of Sleep Apnea." Therefore, because the evidence above indicates that the Veteran's sleep apnea could be etiologically related to his active service, or his service connected PTSD, TBI, and asthma, the claim must be remanded to obtain a VA examination. Accordingly, the case is REMANDED for the following action: 1. Attempt to locate and associate with the Veteran's claims file the STR titled "Adult Preventative and Chronic Care Flowsheet." The RO must make all reasonable efforts to obtain the document, to include contacting the National Personnel and Records Center (NPRC) for an additional copy if necessary. 2. After completion of the above schedule the Veteran for an appropriate VA examination to determine the likely etiology of his currently diagnosed sleep apnea. Copies of all pertinent records should be forwarded to the examiner for review. Based on the examination and review of the record, the examiner should offer an opinion to the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's sleep apnea was incurred in or aggravated by service? If the answer is no, address the following questions. (b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's sleep apnea was caused by his service-connected PTSD? (c) Is it at least as likely as not that the Veteran's service-connected PTSD aggravated his sleep apnea? (d) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's sleep apnea was caused by his service-connected TBI? (e) Is it at least as likely as not that the Veteran's service-connected TBI aggravated his sleep apnea? (f) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's sleep apnea was caused by his service-connected asthma? (g) Is it at least as likely as not that the Veteran's Service-connected asthma aggravated his sleep apnea? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of sleep apnea present (i.e., a baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then adjudicate the claim. If the benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M.E. LARKIN 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).