Citation Nr: 1802196 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-29 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from May 1962 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the Veteran testified before the undersigned Veterans Law Judge in June 2017. A transcript of this hearing has been associated with the claims file. Additionally, the Board notes that at this hearing, the Veteran requested that a decision on his appeal be delayed by 60 days so that he could submit private treatment records to include a positive nexus opinion. However, as of this date the Veteran has not submitted any additional records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance. First, while a review of the claims file reveals a copy of the Veteran's enlistment physical examination as well as the Veteran's in-service dental treatment records, and the February 2013 addendum opinion discusses in-service pulmonary function test (PFT) results, the Veteran's non-dental service treatment records are not associated with the claims file. Thus, it appears that the Veteran's complete service treatment records have not been uploaded to VA's electronic claims file system. Accordingly, on remand any outstanding service treatment records and other relevant records should be associated with the Veteran's electronic file. Second, with regard to the adequacy of the VA nexus opinions of record, the negative etiology opinions provided in the February 2013 and March 2014 addendum opinions were primarily predicated on the fact that the Veteran's in-service PFT test results were not consistent with obstructive disease and that the Veteran lacked other in-service symptoms of obstructive sleep apnea besides snoring such as headaches in the morning, daytime hypersomnolence, restlessness, trouble concentrating, forgetfulness, depression, irritability, or dry mouth on awakening. However, the body of the January 2013 VA examination report notes that obstructive sleep apnea must be confirmed by a sleep study, and the addendum opinions discussed above did not indicate what role PFT has in either diagnosing or ruling out sleep apnea. Moreover, at his hearing the Veteran explained that in addition to snoring during active duty service, he often experienced fatigue, difficulty concentrating, and daytime hypersomnolence when he would sit down. The Veteran explained that at the time he attributed these issues to his ongoing alcoholism, which had started during his active duty service in the Republic of Vietnam. However, the Veteran stated that after he quit drinking alcohol 20 years ago, his symptoms of snoring, hypersomnolence, fatigue, and difficulty concentrating continued. The Board also notes that even when the Veteran was diagnosed with severe obstructive sleep apnea in 2005, the Veteran also denied morning headaches and memory issues, but did endorse fatigue and daytime sleepiness. Accordingly, an addendum opinion addressing the Veteran's reported symptoms at the time of the sleep apnea diagnosis as well as his Board hearing testimony should be procured. This addendum opinion should also provide additional context for the diagnostic significant of the PFT results discussed in the February 2013 and March 2014 addendum opinions. Finally, as the Veteran indicated that he is currently in receipt of both private and VA treatment for his obstructive sleep apnea condition, on remand any relevant outstanding VA treatment records should be procured, and the Veteran should be provided a release authorization for collection of the private treatment records he discussed at his June 2017 Board hearing. Accordingly, the case is REMANDED for the following action: 1. Procure the Veteran's all outstanding service treatment records that have not yet been associated with the Veteran's electronic claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located, the Veteran must be notified. 2. Obtain the Veteran's outstanding VA treatment records relevant to the claim being remanded and associate those records with the claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 3. Provide the Veteran with a release form for any outstanding private medical records pertinent to his sleep apnea condition. If he returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 4. After completing the development listed above in (1)-(3), provide the Veteran's claims file to an appropriate clinician for procurement of an addendum etiology opinion. A new examination is only required if deemed necessary by the AOJ or the examiner. The entire claims file including 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. a. If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. After reviewing the Veteran's 2005 private treatment records, his June 2017 Board hearing testimony, his service treatment records, and any other relevant private or VA treatment records procured, the examiner should provide the following opinion: i. whether it is at least as likely as not (50 percent or greater probability) the Veteran's sleep apnea: (1) began during active service; or (2) is related to any in-service event or injury. Additionally, the examiner should explain the significance, if any, of PFT in diagnosing sleep apnea. The examiner is directed to discuss the previous February 2013 and March 2014 etiology opinions, as well as the Veteran's June 2017 Board hearing testimony. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 5. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. After undertaking any necessary additional development, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). (Continued on the next page) This claim must be afforded expeditious treatment. The law requires that all claims 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 (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).