Citation Nr: 1752465 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-22 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability or due to claimed exposure to asbestos or explosive remnant exposure during service. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD B. Farrell, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from June 1987 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which found that the Veteran had not submitted new and material evidence to reopen his claim of service connection for obstructive sleep apnea. In January 2014, the Board reopened the claim on appeal and remanded it for additional development. In October 2015, the Board remanded the claim for an opinion regarding the likelihood that the current sleep apnea is etiologically related to service connected asthma and bronchitis. In a November 2016 remand, the Board instructed that the RO was to conduct additional evidentiary development and that any medical opinion issued by a VA examiner was to address the likelihood of the Veteran's obstructive sleep apnea being related to in-service exposure to asbestos or explosive remnant exposure. As reflected on the title page of this decision, the Board has broadened the service connection claim to entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, or due to exposure to asbestos or explosive remnant exposure. For the reasons stated below, the appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the appellant if further action is required. REMAND Remand is necessary to undertake the appropriate development to assess the likelihood and extent of the Veteran's claimed exposures and to obtain a new VA examination to ascertain the likely etiology of the Veteran's currently diagnosed obstructive sleep apnea. The fact that the Veteran currently has sleep apnea is undisputed. The Veteran offers multiple assertions as to the etiology of his sleep apnea. As noted above, in November 2016, the Board remanded the claim currently on appeal in order to allow the RO to obtain information about the Veteran's exposure to asbestos and explosive remnant exposure, and, if warranted, to provide the Veteran a VA medical examination and medical opinion. In response to the 2016 Board remand, the RO sent a letter to the Veteran requesting additional evidence regarding his claimed exposure, but there is no indication that he ever responded. Nonetheless, the Board finds that development should be conducted on the information he has already presented. In this regard, he currently has three contentions that remain unresolved - that his sleep apnea is related to asbestos exposure, explosive remnant exposure, and/or related to a service connected disability, namely hypertension. On remand, the RO should attempt to corroborate the Veteran's claimed exposure to asbestos and explosive remnants during service. The question of a relationship between the Veteran's sleep apnea and his service-connected hypertension will be addressed by a medical examiner. Moreover, with regard to the prior remand's request for a medical opinion, the RO did obtain an April 2017 medical opinion in which the VA examiner determined that the Veteran's sleep apnea is less likely as not related to his service. In finding so, the examiner observed that the Veteran's obstructive sleep apnea is not "related to asbestosis." See April 21, 2017 VA Medical Opinion at 3 (emphasis added). However, the question posed by the Board was whether the Veteran's apnea is related to asbestos exposure, not asbestosis. In fact, there is no evidence of record indicating that the Veteran has ever been diagnosed with asbestosis, which is a "form of lung disease (pneumoconiosis) caused by inhaling fibers of asbestos ..." Dorland's Illustrated Medical Dictionary at 146 (28th ed. 1994). Therefore, the VA opinion is not responsive to the question posed and is thus inadequate to decide the claim, and ultimately of little to no probative value. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Additionally, the April 2017 examiner did not review or address the Veteran's lay evidence of record in forming the medical opinion, see April 21, 2017 VA Medical Opinion at 2-3 ("Evidence Review"). In opining that the Veteran's sleep apnea is less likely than not caused by asbestos exposure, the examiner remarked that "there are no labs, diagnostics, and records to support any exposure to asbestos." To the contrary, the claims file includes at least four lay statements - received in January 2007 September 2006, July 2011, April 2016 - in which the Veteran specifically claims in-service exposure to asbestos, and none of his assertions were addressed. Indeed, a VA examiner must consider all pertinent medical and lay evidence relevant to the Veteran's claim. 38 C.F.R. § 3.303(a) (2017); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2006). Therefore, the April 2017 VA examiner's opinion does not consider the Veteran's lay contentions and must therefore be considered inadequate for this reason as well. Moreover, the Board's November 2016 remand specifically directed that if an examiner determined that the Veteran's obstructive sleep apnea is not the result of asbestos exposure, the examiner was to provide "an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it began during active service or is related to any incident of service, to include explosive remnant exposure." However, the April 2017 opinion fails to address claimed explosive remnant exposure. See April 21, 2017 VA Medical Opinion at 3. The Board also observes that the Veteran has recently asserted in July 2017 correspondence that his sleep apnea is etiologically related to his service-connected hypertension. As indicated, this question must also be addressed by a medical examiner. Finally, inasmuch as the Veteran has also challenged the adequacy of the examination, the Board finds that a new examination should be afforded to him, as opposed to obtaining an addendum only. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA medical evidence and associate it with the claims file. 2. Conduct the appropriate development to assist in corroborating the Veteran's reports of: (i) asbestos exposure while sleeping in World War II barracks containing asbestos at Fort Huachuca, Arizona in 1999. (ii) asbestos exposure while staying at "site R" at Ft. Ritchie in Maryland during service. See September 2006 correspondence and July 2011 VA Form 9; and (iii) exposure to asbestos and unexploded World War II ordnance (explosive remnants) at "site R" in Maryland and in Portugal. See Statement in Support of Claim received in May 2016. Attention is called to the following: *A May 2004 statement received in January 2007 (submitted with VA Form 21-4142) reflecting the Veteran's contention that he was exposed to asbestos during service (i.e., sleeping in World War II barracks that reportedly contained asbestos). *Correspondence dated September 2006 and received in April 2010 reflecting the Veteran's contention that he was exposed to asbestos during service. * A VA Form 9 dated July 2011 reflecting the Veteran's contention that he was exposed to asbestos during service. *A Statement in Support of Claim received in May 2016 reflecting the Veteran's contention that he was exposed to asbestos and explosive remnants during service. 3. Then, provide the Veteran with a new VA examination, preferably by an examiner who has not yet examined him, to determine the likely etiology of his obstructive sleep apnea. A copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After reviewing the claims file in its entirety, and examining the Veteran, the examiner is asked to respond to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea is related to his active military service. In doing so, specifically address: (i) the Veteran's contention that his sleep apnea had its onset during service as evidenced by the severe nature of the disorder when first diagnosed only four years after service discharge. (ii) the Veteran's contention that his WWII barracks while stationed at Fort Huachuca, Arizona in 1999 contained asbestos. (iii) his claimed exposure to explosive remnants during service. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea is proximately due to, or aggravated by, his service-connected hypertension. If the examiner cannot provide the requested opinion, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain this missing information, including an examination of the Veteran, should be exhausted before concluding that the answer cannot be provided. 4. Readjudicate the Veteran's claim for entitlement to service connection for obstructive sleep apnea, claimed as due to in-service exposure to asbestos or explosive remnants and as secondary to a service-connected disability. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).