Citation Nr: 1633443 Decision Date: 08/24/16 Archive Date: 08/31/16 DOCKET NO. 11-08 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for pancreatitis, to include as secondary to a service-connected disability. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to November 1972 and from January 1973 to December 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010 and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. With respect to the claim for service connection for sleep apnea, the Veteran filed a timely notice of disagreement and a statement of the case was issued in February 2016. However, in March 2016, the Veteran submitted a statement indicating his desire to withdraw the appeal. Then, in April 2016, the Veteran requested that his appeal be continued. He explained that he had changed his mind regarding the appeal based upon his review of a particular service treatment record. As the April 2016 statement was received within one year of the appealed rating decision, the Board accepts the statement in lieu of a Substantive Appeal Form 9. As such, the Board has jurisdiction over the claim. This appeal has been processed utilizing the Veterans Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Competent medical evidence reflects that the Veteran's chronic pancreatitis was caused by medication used treat his service-connected degenerative disc disease and intervertebral disc syndrome of the cervical spine. CONCLUSION OF LAW Chronic pancreatitis is secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 1031, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision the Board is granting the benefit sought, namely, service connection for chronic pancreatitis. As such, no discussion of VA's duty to notify and assist is necessary. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The evidence of record, including VA treatment records, reflects a diagnosis of chronic pancreatitis. See e.g. December 2014 VA outpatient treatment record. Thus, the requirement for a current disability is met. Regarding proximate cause of the current disability, the Board finds the evidence is at the very least, in equipoise. Weighing in favor of the claim is a December 2014 VA treatment record from the Veteran's primary care physician who noted an impression that the Veteran had NSAID (non-steroidal anti-inflammatory drug) induced pancreatitis. The physician went on to list an impression of "chronic pancreatitis, medication induced." The Veteran also submitted a statement in September 2015 reporting that his private treatment provider told him that he had to stop taking NSAID pain relievers because they caused severe pancreatitis. The Veteran is service connected for degenerative disc disease and intervertebral disc syndrome in the cervical spine, among others musculoskeletal disabilities. Tricare treatment records and VA examination reports of record indicate that the cervical spine disability causes significant pain. See e.g. November 2015 VA cervical spine examination report. Further, VA, private, and service treatment records demonstrate that the Veteran had been taking Motrin (an NSAID pain reliever) for many years to treat his cervical spine pain. See e.g., November 1990 service treatment record, December 2010 Tricare treatment record, July 2011 VA examination report, and August 2011 VA treatment record. The Board finds the December 2014 VA primary care physician's assessment to be probative in support of a finding that the Veteran's NSAID pain medication caused the chronic pancreatitis. The opinion is bolstered by the evidence of record supporting a long history of usage of NSAID pain relievers for service-connected cervical spine pain, since service. There is no competent evidence to contradict the December 2014 VA physician's assessment. As competent medical evidence reflects that the Veteran's chronic pancreatitis is due to medication used to treat his service-connected disability, the criteria for a grant of service connection for chronic pancreatitis secondary to service-connected degenerative disc disease and intervertebral disc syndrome in the cervical spine, are met. 38 C.F.R. § 3.310. ORDER Service connection for chronic pancreatitis is granted. REMAND Regarding the remaining claim for service connection for sleep apnea, further development is required. As an initial matter, the Veteran's representative has not had an opportunity to provide a statement regarding this appeal and should be afforded such opportunity. Additionally, review of the October 1991 Report of Medical History reveals that the Veteran complained of frequent difficulty sleeping in service. The Veteran also has a current disability of sleep apnea and reports that he has experienced such difficulty sleeping, since service. See August 2015 Notice of Disagreement. As such, a VA examination is required under McLendon v. Nicholson, 20 Vet. App. 79 (2006) to determine whether his current disorder is causally related to active service. With respect to records, the most recent records from the Hampton VA medical system are dated in December 2015. Any additional outstanding VA treatment records should be sought. Further, as the Veteran has also reported that he is also treated by non-VA doctors, he should be offered the opportunity to provide additional private records, or submit an authorization and consent form for such records to be obtained on his behalf. Accordingly, the case is REMANDED for the following action: 1. Upon receipt of the appropriate authorization and consent, obtain any outstanding, pertinent private or Tricare treatment records. 2. Obtain all relevant outstanding VA treatment records, including records from the Hampton VA medical system dated since December 2015. 3. After obtaining all outstanding records, afford the Veteran the appropriate VA examination to determine the nature and etiology of the Veteran's sleep apnea disorder. All appropriate testing should be conducted and the Veteran should be asked to provide a complete medical history, if possible. Based on examination findings, including any necessary diagnostic studies, as well as a review of the claims file, the examiner is requested to answer the following: Is it at least as likely as not (i.e., a probability of 50 percent or greater) that a sleep apnea disorder had its onset in service, or is due to an in-service disease or injury? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather 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. Complete rationale must be provided for any opinion given. If the examiner cannot provide opinion without resort to speculation, the examiner is requested to explain why an opinion would be speculative. For example, whether there is additional information needed to provide the necessary opinion (if so, identify the necessary information) or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After the above development has been completed, and any additional development as may be indicated by the results of the development requested above has been accomplished, re-adjudicate the claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs