Citation Nr: 1800646 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-18 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA). 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran has verified honorable service in the United States Army and Army National Guard from March 1994 to December 2008 with periods of active duty service from January 2003 to December 2004 and July 2006 to January 2008. The Veteran also had periods of active duty for training (ACDUTRA) from June 26, 1995 to August 23, 1995, and periods of inactive duty training (INACDUTRA) in the Army National Guard. The Veteran received multiple awards and medals including the Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for hypertension, and a September 2012 rating decision, which denied service connection for sleep apnea. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND I. Service Connection for Obstructive Sleep Apnea The Veteran asserts that his obstructive sleep apnea is related to service. At an August 2017 Board hearing, the Veteran testified that he sought treatment for sleeping problems in service. He testified that he began experiencing symptoms of waking up, gasping for air, and coughing every other night when he served in Iraq from 2006 to 2007. He was prescribed Ambien to help him stay asleep. In 2010, the Veteran underwent a sleep study and was diagnosed with sleep apnea. The Veteran also testified that he had been diagnosed with asthma during service in 2004. The Veteran's representative contends that the Veteran's sleep apnea is related to the asthma diagnosis noted in service. The Veteran served in the United States Army and the Army National Guard from March 1994 to at least December 2008 with periods of active duty service from January 2003 to December 2004 and July 2006 to January 2008. Service treatment records reflect treatment for difficulty sleeping from December 2006. December 2006 service treatment records reflect that the Veteran complained of difficulty sleeping, and was prescribed Ambien. VA treatment records in December 2007 reflect that the Veteran reported that his sleep was terrible, and he slept approximately four to six hours with medication. A February 2008 Post-Deployment Health Reassessment (PDHRA) form reflects that the Veteran noted he had problems sleeping or still feeling tired after sleeping. Post-service treatment records reflect a diagnosis of mild sleep apnea from December 2009. VA treatment records in November 2009 reflect that the Veteran reported that he had recently married, had not been sleeping well, and snored a lot. February 2010 VA treatment records reflect that the Veteran underwent a consultation at the sleep disorder center in December 2009. A December 2009 VA psychiatric progress note reflects that the Veteran underwent a sleep study which revealed fragmented sleep with little time in REM sleep with mild obstructive sleep apnea. The treatment provider noted that the Veteran was to have continuous positive airway pressure (CPAP) titration. March 2010 VA treatment records reflect that the Veteran underwent a polysomnography with CPAP titration in February 2010. The Veteran was afforded a VA examination in July 2012, which reflected a diagnosis of mild sleep apnea from February 2010. The Veteran reported restless sleep, snoring and irregular breathing since his return from service in 2007. The examiner opined that it was less likely than not that the Veteran's claimed sleep apnea condition was secondary to any events or conditions during military service. The examiner noted that the subjective reference in October 2007 on the post-deployment questionnaire to difficulty sleeping and feeling tired after sleeping were non-specific and there was no medical evidence that the problem was sleep apnea, and the October 2007 physical examination was normal. The examiner found that there was no medical evidence as to the nature of the complaints and no medical evidence of any condition of sleep apnea during medical service or until the sleep disturbance investigation of 2010 by the VAMC, which post-dates military service by three years and is too remote from service to be considered related to or the result of service. The July 2012 examiner does not appear to have considered the December 2006 service treatment record, which reflects that the Veteran complained of difficulty sleeping and was prescribed Ambien. The examiner also does not appear to have considered the November 2009 VA treatment record, which reflects that the Veteran complained of problems sleeping and snoring. Finally, the examiner also did address VA treatment records, which reflect that the Veteran had undergone a consultation at a sleep disorder center in December 2009, and was diagnosed with mild obstructive sleep apnea. Further, the Board finds the examiner's conclusion that the sleep disturbance investigation of 2010 by the VAMC postdated military service by three years inaccurate. As previously discussed, the Veteran was discharged from active duty in January 2008, which was two years prior to the February 2010 sleep study, and less than two years prior to the Veteran's November 2009 report that he was recently married, had trouble sleeping and was snoring. Therefore, in light of the outlined deficiencies in the July 2012 examination, the Board finds that a VA examination is warranted to determine the nature and etiology, of the Veteran's OSA, to include any qualifying period of ACDUTRA or INACDUTRA. Finally, the Board notes that February 2010 and March 2010 VA treatment records indicate that there is a December 2009 and a February 2010 private medical record from St. Mary's Good Samaritan Hospital, Sleep Disorders Center. The claims file currently does not contain any private treatment records relating to treatment of the Veteran's OSA at St. Mary's Good Samaritan Hospital, Sleep Disorders Center. On remand, the AOJ should ensure that all outstanding VA and private records are obtained and associated with the record on appeal. II. Service Connection for Hypertension The Veteran asserts that his hypertension is related to service or to service-connected posttraumatic stress disorder (PTSD). At an August 2017 Board hearing, the Veteran testified that his service-connected PTSD caused his hypertension. The Veteran testified that during service from 2006 to 2007, he began experiencing symptoms of feeling flushed, he sought treatment, and his blood pressure was tested on a weekly basis. He testified that although his blood pressure was high, he was not put on medication. He testified that in 2009, after service, he sought medical treatment after testing his blood pressure at work, was prescribed medication to treat his hypertension, and continues to take medication to treat his hypertension. The Veteran served in the United States Army and Army National Guard with periods of service from March 1994 and December 2008 and active duty from January 2003 to December 2004 and July 2006 to January 2008. Service treatment records reflect that in January 2004, the Veteran's blood pressure was 150/95. In July 2006, the Veteran complained of being dizzy and light-headed, his blood pressure was 132/84. Further testing revealed that the Veteran's blood pressure was 114/68 while lying down, 120/78 while sitting, and 116/80 while standing. December 2006 service treatment records reflect that the Veteran complained of a racing heart. His blood pressure was 129/82. The treatment provider noted possible anxiety. Service treatment records reflect that in August 2007, the Veteran's blood pressure was 150/91 and 133/83. Post-service treatment records reflect a diagnosis of hypertension from June 2009. VA treatment records reflect that in November 2008 the Veteran's blood pressure was 147/97, 137/93 in December 2008 and 140/90 a few days later. VA treatment records in June 2009 reflect a diagnosis of hypertension. The Veteran went to the VA Emergency Department for elevated blood pressure. The Veteran's blood pressure was 130/96. The Veteran reported that he had been using a co-worker's blood pressure monitor, and that his blood pressure had been running high. He reported that the previous day his blood pressure was 168/110. The Veteran was afforded a VA examination in March 2010, which reflected a diagnosis of hypertension from June 2009. The Veteran reported that his hypertension was caused by his PTSD. Physical examination of the Veteran reflects that his blood pressure was 139/92 and 138/83. A third reading was not taken. The examiner opined that the Veteran's hypertension was less likely than not caused by his PTSD due to lack of corroborating evidence. The examiner opined that the Veteran's hypertension was as likely as not related to family history (mother). The examiner noted that the Veteran was currently on an anti-depressant, which based on his encounter with the Veteran seemed to be controlling his symptoms. The March 2010 examiner did not address whether hypertension is directly related to service. The examiner did not consider the January 2004 service treatment record which reflects that the Veteran's blood pressure was 150/95; the July 2006 service treatment record which reflects that the Veteran complained of being dizzy and light headed; the December 2006 service treatment record which reflects that the Veteran complained of a racing heart and the treatment provider's note that it was possibly anxiety; and the August 2007 service treatment record which reflects that the Veteran's blood pressure was 150/91 and 133/83. Although, the examiner noted that the Veteran's anti-depressant medication seemed to be controlling his symptoms, the examiner did not discuss whether the Veteran's PTSD symptoms aggravated the Veteran's hypertension at any time. Based on the outlined deficiencies in the most recent medical opinion, the Board finds that a VA examination is warranted to determine the nature and etiology of the Veteran's hypertension, to include any qualifying period of ACDUTRA. III. Periods of Service The Board notes that a March 2009 Army National Guard Retired Points History Statement reflects that the Veteran had several periods of service from March 1994 to at least December 2008. Although the statement reflects that the Veteran began a period of service in December 2008, it does not indicate the date the period of service ended. In addition, service treatment records reflect that the Veteran underwent a periodic health assessment in January 2009. The claims file currently does not contain service department records, which indicate the Veteran's final date of separation from the Army National Guard. On remand, the AOJ should ensure that all outstanding service department records are obtained and associated with the record on appeal. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all outstanding private and VA records relating to treatment of the Veteran's OSA and hypertension. The AOJ should ensure that the Veteran's complete private treatment records from St. Mary's Good Samaritan Hospital, Sleep Disorder Center are obtained and associated with the record on appeal. 2. The AOJ should obtain the Veteran's complete service personnel records from his service as a member of the Army National Guard to determine the specific date the Veteran separated from the Army National Guard. 3. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran's OSA. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: a. whether it is at least as likely as not (50 percent or greater likelihood) that OSA manifested during, is otherwise causally or etiologically related to, or aggravated by, a period of active duty service or ACDUTRA. b. whether it is at least as likely as not (50 percent or greater likelihood) that OSA is proximately due to a service-connected disability. c. Whether it is at least as likely as not (50 percent or greater likelihood) that OSA is aggravated (increased in severity) by a service-connected disability. The examiner should consider and discuss the following: i. the Veteran's testimony that he began experiencing symptoms of waking up, gasping for air, and coughing every other night when he served in Iraq between 2006 to 2007; ii. service treatment records, which reflect the Veteran's complaints and treatment for difficulty sleeping from December 2006; iii. VA treatment records, which reflect the Veteran's complaints and treatment for difficulty sleeping from December 2007, and snoring in November 2009; iv. VA treatment records, which reflect that the Veteran was diagnosed with mild obstructive sleep apnea from December 2009. In rendering the opinion, the examiner should consider the Veteran's statements regarding his symptoms to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran's hypertension. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: a. whether it is at least as likely as not (50 percent or greater likelihood) that hypertension manifested during, is otherwise causally or etiologically related to, or aggravated by, a period of active duty service and/or ACDUTRA. b. whether it is at least as likely as not (50 percent or greater likelihood) that hypertension is proximately due to a service-connected disability to include PTSD. c. whether it is at least as likely as not (50 percent or greater likelihood) that hypertension is aggravated (increased in severity) by a service-connected disability to include PTSD. The examiner should consider and discuss whether the service treatment records, including records documenting the Veteran's blood pressure was measured at 150/95 in January 2004 and 150/91 in August 2007, is evidence of hypertension. The examiner should also consider and discuss the following: i. the Veteran's testimony that he began experiencing symptoms of feeling flushed in service from 2006 to 2007; ii. the July 2006 service treatment record, which reflects that the Veteran complained of dizziness and light-headedness; iii. the December 2006 service treatment record, which reflects that the Veteran complained of a racing heart and the treatment providers note that it, was possibly anxiety; In rendering the opinion, the examiner should consider the Veteran's statements of his symptoms to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 5. Readjudicate the claims on appeal in light of all of the evidence of record. If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period within which to respond thereto. 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). 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. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).