Citation Nr: 1800151 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-12 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (originally claimed as memory loss, fatigue, stress, headaches, and sleep disturbance). 2. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1988 to October 1988, August 1989 to May 2000, and September 2001 to May 2002. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon which among other things, denied service connection for headaches, sleep disturbance, fatigue, memory loss, stress and TDIU. In a January 2011 letter, the Veteran requested that his claim for the above five symptoms be restated as a claim for service connection for sleep apnea. In August 2010 the Veteran filed his notice of disagreement, was issued a statement of the case in January 2014, and in March 2014 perfected his appeal to the Board. In September 2015, the Board remanded the claim for a new VA examination to determine whether the Veteran's sleep apnea was at least as likely as not related to his onset of symptoms of sleep apnea in service and/or his nose fracture suffered in service. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his current diagnosis of obstructive sleep apnea is related to active military service. Specifically, he asserts in the June 2009 claim for service connection that his symptoms of sleep apnea to include disturbed sleep, headaches, memory loss, and fatigue began during active military service. Furthermore, he contends that his current sleep apnea is related to weight gain during service and/or the fracture of his nose in July 1992 that was documented in his service treatment records. The Veteran was provided with a VA examination in January 2014 wherein the examiner provided a negative opinion with respect to whether the Veteran's current sleep apnea is related to the Veteran's weight gain in service. She did not provide an opinion on whether the Veteran's obstructive sleep apnea is related to the nose fracture during service, thus the claim was remanded for an additional VA examination. The Veteran was afforded an additional VA examination in January 2016 wherein the examiner provided a negative opinion with respect to whether the Veteran's sleep apnea is related to the Veteran's nose fracture during service. However, the examiner failed to provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea is related to his reported symptoms of disturbed sleep, headaches, memory loss, and fatigue during service, therefore the examination report is inadequate. The Veteran claims that he is unable to obtain or sustain substantially gainful employment due to his sleep apnea. A grant of the service connection claim could affect the adjudication of such claim. Thus, the issue of entitlement to TDIU is inextricably intertwined with the above issue and must also be remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion from an appropriate specialist physician to address the nature and etiology of the Veteran's sleep apnea condition. The claims file must be made available to the physician examiner for review. The physician is requested to review all pertinent records associated with the claims file and offer an opinion as to whether the Veteran's current obstructive sleep apnea is at least as likely as not (i.e., a fifty percent or greater probability) related to the Veteran's active military service, to include consideration of the Veteran's statements of the onset of symptoms of sleep apnea in service. The physician should provide an explanation for all conclusions reached. As part of his or her rationale, the examiner is asked to address the statements from the Veteran that his symptoms of sleep apnea began during active military service. The physician should discuss whether it is at least as likely as not that the Veteran's symptoms of sleep problems, insomnia, fatigue, memory loss, and/or stress are symptoms of his current diagnosis of obstructive sleep apnea. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. 2. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issues that are the subject of this remand. If any benefits sought are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded an appropriate period of time for response before the case is returned to the Board. 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 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). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).