Citation Nr: 1629563 Decision Date: 07/25/16 Archive Date: 08/04/16 DOCKET NO. 10-00 143A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus, type II, service-connected posttraumatic stress disorder (PTSD), and Agent Orange exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968, to include courageous service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In August 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A copy of the transcript from that hearing has been associated with the record on appeal. REMAND The Veteran is claiming entitlement to service connection for sleep apnea. Specifically, he has asserted that his sleep apnea began in service, as evidenced by his snoring during service, and that his sleep apnea may be related to exposure to Agent Orange or due to his service-connected diabetes or PTSD. Private medical records dated May 2008 reflect a current diagnosis of sleep apnea. The Veteran's DD-214 confirms he served within the borders of the Republic of Vietnam during the Vietnam Era, and therefore, exposure to Agent Orange is presumed. See 38 U.S.C.A. § 1116(f) (West 2014). The Veteran's claim was remanded in September 2014 to provide him with an examination and to obtain medical opinions to determine the etiology of his currently diagnosed sleep apnea. The remand directives specifically instructed the examiner to determine (1) whether it is at least as likely as not that the Veteran's sleep apnea began in service, was caused by service, or is otherwise related to service, to include as due to exposure to Agent Orange; and (2) whether it is at least as likely as not that the Veteran's sleep apnea was caused or aggravated by his service-connected diabetes mellitus, type II. The Veteran underwent a December 2014 VA examination and the examiner provided medical opinions; however, the Board finds the opinions are inadequate and that an additional remand is required. Specifically, the first opinion, regarding direct service connection, fails to take into account the Veteran's statements that he snored loudly while in service and did not snore prior to entering service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that a VA examiner impermissibly ignored a Veteran's lay assertions that he sustained a back injury during service); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that an examiner "failed to consider whether [] lay statements presented sufficient evidence of etiology of [the veteran's] disability such that his claim of service connection could be proven"). With regard to whether the Veteran's service-connected diabetes caused or aggravated his sleep apnea, the examiner only provided an opinion with regard to aggravation, finding the Veteran's sleep apnea was less likely than not aggravated by his diabetes. In support of that determination, the examiner stated that "[a]ccording to medical literature, diabetes does cause sleep apnea and diabetes does not aggravate sleep apnea. On the other hand, sleep apnea can be a risk factor for diabetes." Although the examiner said "diabetes does cause sleep apnea," the following sentence starting with "[o]n the other hand," implies that the examiner meant to say diabetes does not cause sleep apnea. Because the examiner failed to provide clear and unambiguous opinions regarding whether it is at least as likely as not that the Veteran's service-connected diabetes directly caused or aggravated his sleep apnea, a remand is required. See Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (holding that the Board may discount the value of an ambiguous medical opinion). In an April 2016 brief in support of his claim, the Veteran's representative argued that the Veteran's sleep apnea may also be due to his service-connected PTSD or due to diabetic neuropathy and cited to medical literature as supporting evidence. Based on the foregoing, the Board finds medical opinions must also be obtained to determine whether the Veteran's service-connected PTSD caused or aggravated his diagnosed sleep apnea. Although VA treatment records associated with the electronic record do not demonstrate a current diagnosis of diabetic neuropathy, if more recent evidence reflects that the Veteran now has a diagnosis of diabetic neuropathy, an opinion regarding whether diabetic neuropathy caused or aggravated the Veteran's sleep apnea must also be obtained. The Board notes that in an August 2009 letter, the Veteran informed VA of the names of veterans he served with in Vietnam, whom he indicated would be able to help substantiate his claim for service connection for sleep apnea. In a December 2009 statement of the case, VA informed the Veteran that while "buddy statements" may be submitted to support his claim, VA's duty to assist does not provide provisions allowing VA to request those statements on the Veteran's behalf. In his January 2010 substantive appeal, the Veteran indicated that he felt VA's statement that "it's not their job" to find the veterans he identified was incorrect. The Board reiterates that VA does not have a duty to contact the individuals the Veteran identified as that development is outside the scope of VA's duty to assist. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). If the Veteran wishes to submit statements from fellow service members he is free to do so, and he is responsible for obtaining and submitting this information to VA himself. Finally, on remand, the RO must also obtain all outstanding VA treatment records from November 2014 to the present and associate them with the evidence of record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records for the Veteran dated November 2014 to the present and associate them with the claims file. 2. Following completion of the above, a qualified medical professional, other than the medical professional who provided the December 2014 opinions, must provide opinions regarding the etiology of the Veteran's currently diagnosed sleep apnea. The claims file, to include a copy of this remand, must be reviewed. Following a thorough review of the evidence of record, to include the Veteran's statements, the medical professional must opine on the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea began in service, was caused by service, or is otherwise related to service, to include as due to exposure to Agent Orange? * In providing this opinion the medical professional must discuss the Veteran's contentions that he was told by fellow service members that he snored loudly during active duty service and that he was not aware that he snored prior to service. (b) If the above requested opinion is negative, the medical professional must state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by his service-connected diabetes mellitus, type II? (c) If the above requested opinions are negative, the medical professional must state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD? * In providing this opinion, the medical professional must discuss this article: Peter J. Colvonen, et al., Obstructive Sleep Apnea and Posttraumatic Stress Disorder Among OEF/OIF/OND Veterans, JOURNAL OF CLINICAL SLEEP MED. (2015). (d) If, and only if, the evidence reflects that the Veteran has a diagnosis of diabetic neuropathy, and if the above requested opinions are all negative, the medical professional must state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by diabetic neuropathy? * In providing this opinion, the medical professional must discuss this article: Emma Hitt, Ph.D, et al., Obstructive Sleep Apnea Linked to Diabetic Neuropathy, AM. JOURNAL OF CRITICAL CARE MED. (June 21, 2012). The medical professional is informed that "aggravation" is defined as a permanent worsening of a disability beyond its natural progression. For purposes of the requested opinions, the medical professional must assume that the Veteran is a credible historian and that he is competent to report symptoms he has experienced during and since service. The rationale for all opinions expressed must also be provided. If the medical professional is unable to provide any required opinion, he or she should explain why. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the medical professional should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the medical professional designated to provide the required opinions. 3. Then, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, 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 further appellate action. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).