Citation Nr: 1801781 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 17-10 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for sleep apnea as secondary to service-connected type II diabetes mellitus, posttraumatic stress disorder (PTSD), and hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Navy from March 1958 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2017. A transcript of that hearing has been associated with the claims file. The record was held open for 30 days following that hearing to provide Veteran and his representative an opportunity to submit additional evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA examination in May 2015 in connection with his claim. The examiner noted that he had been diagnosed with obstructive sleep apnea in 2015 and opined that it is less likely than not that the disorder was proximately due to or the result of the Veteran's service-connected diabetes mellitus and hypertension. In so doing, she noted that the most common cause of obstructive sleep apnea is associated with soft tissue of the mouth and throat. She explained that, during sleep, when the throat and tongue muscles are more relaxed, the soft tissue can cause the airway can become blocked. The examiner also stated that diabetes mellitus and hypertension are not documented causes of obstructive sleep apnea. Nevertheless, the Board notes that the May 2015 VA examiner did not address the aggravation prong of secondary service connection with regards to diabetes mellitus and hypertension. Nor did the examiner discuss whether the Veteran's service-connected PTSD caused or aggravated his sleep apnea. Therefore, the Board finds that an additional medical opinion is needed to determine the nature and etiology of any sleep apnea that may be present. The Board does note that an additional VA medical opinion was provided by the same examiner in December 2016. However, that opinion does not address the remaining medical questions noted above. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should request any outstanding VA treatment records, to include any records from the San Diego VAMC. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The Veteran has contended that his obstructive sleep apnea is secondary to his service-connected PTSD, type II diabetes mellitus, and hypertension. He also asserted that any weight gain resulting in sleep apnea would have been caused by his service-connected PTSD and diabetes mellitus. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's obstructive sleep apnea was either caused by or permanently aggravated by his service-connected type II diabetes mellitus, PTSD, and hypertension. In rendering his or her opinions, the examiner should consider the medical literature submitted by the Veteran and his representative. See November 2017 correspondence; August 2017 correspondence; March 2017 correspondence; October 2015 correspondence. He or she should also consider the Veteran's assertion any weight gain resulting in sleep apnea would have been caused by his service-connected PTSD and diabetes mellitus. See November 2017 hearing transcript. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claims should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS 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).