Citation Nr: 1802285 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-20 540A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1969 to February 1971 with combat service in the Republic of Vietnam. Among other awards and decorations, he is in receipt of the Purple Heart and the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefit currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Central Office hearing in September 2016 to present testimony on the issue on appeal. He submitted additional evidence at that time, with a waiver of RO consideration of that evidence. The Board notes that the Veteran's substantive appeal received in June 2014 appears to indicate a preference that his claim be considered under a theory of entitlement directly relating his sleep apnea to military service, as opposed to relating this disability secondarily to his service-connected PTSD. However, he has since submitted treatise evidence regarding the relationship between sleep apnea and PTSD in September 2016. In any event, based on the evidence of record, VA is required to consider all theories of entitlement raised, thus the Board must proceed with both direct and secondary service connection analyses in this case. See, e.g., Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Additional evidentiary development is required before the Board can decide the merits of this claim. In hearing testimony provided in September 2016, the Veteran asserted that during military service he experienced throat and breathing problems. Upon separation examination in January 1971, the Veteran responded "no" to questions about whether he ever experienced shortness of breath or frequent trouble sleeping, but responded "yes" to having ear, nose, or throat trouble. Service treatment records. Although he reports not seeking treatment for these reported throat troubles during service, he does state that he sought treatment within the year following separation from service. Hearing transcript, September 2016. The Veteran reports that this treatment resulted in a surgery to open his airways, involving a three day hospitalization. Id. There is no evidence that these private treatment and hospitalization records have been sought. As such, VA should provide assistance in obtaining these records if they can be appropriately identified by the Veteran. 38 U.S.C. § 5103A(b) (2012); 38 C.F.R. § 3.159 (c)(1) (2017). Additionally, VA medical records currently associated with the claims file appear incomplete. The progress notes printed on July 21, 2011 skip from page 68 to page 203 with dates spanning from March 2000 to May 2011 apparently covered in the missing pages. As the Veteran contends that he has experienced persistent nasal, throat, and breathing problems prior to the diagnosis of sleep apnea in 2011, the earlier VA records may be directly relevant to this claim and should be associated with his claims file. 38 C.F.R. § 3.159(c)(2) (2017). Finally, the Veteran was afforded a VA examination in April 2013. However, at that time, the examiner only offered an opinion as to whether the Veteran's diagnosed sleep apnea was attributable to his service-connected PTSD. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An opinion is adequate where it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's understanding of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Furthermore, Stefl instructs that when a medical nexus opinion finds that service connection is not warranted under an alternate theory of entitlement, without considering direct service connection, that medical opinion is facially inadequate. Id. at 124. As such, a complete medical opinion is now required. The Board also notes that one of the Veteran's treatment providers, a Dr. LR, offered an opinion that the Veteran's PTSD is "an aggravating factor" of his sleep apnea. Medical opinion letter, August 2016. However, this physician did not provide any additional detail or supporting rationale as to how or why she believed the two conditions may be related and there is insufficient detail on which the Board may base its decision. An additional VA examination is needed to consider each of these factors. Barr v. Nicholson. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to request that he identify and provide the necessary authorization and release forms for any private medical providers of treatment following separation from military service that he has described for his throat and breathing problems, to include the surgery and hospitalization after discharge reported during his Board hearing testimony. All attempts to obtain these records, including those which may ultimately prove unsuccessful, should be documented in the claims folder. If any identified medical record is unavailable, this should be indicated in the file, and the documentation used in making that determination should also be set forth in the claims file. All relevant and obtainable private treatment records properly identified by the Veteran should then be associated with the claims file. 2. Associate with the claims file all available VA treatment records related to sleep apnea, or other throat or breathing problems, from 1972 to present that are not already of record. 3. After completion of the development requested above, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's diagnosed sleep apnea. The electronic claims file must be made available to the examiner for review. The examiner's attention is specifically invited to the treatise evidence regarding sleep, PTSD, and breathing problems submitted by the Veteran in September 2016, as well as any private medical evidence obtained in conjunction with this remand. After reviewing the claims file and personally examining the Veteran, the examiner should answer the following questions: a. Is it at least as likely as not (probability of 50 percent or more) that the Veteran's sleep apnea began in service, or is otherwise related to military service, to include any observable symptoms of breathing troubles credibly described by the Veteran as occurring during that service? To this end, the examiner must be aware that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a particular basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. b. If additional medical records are obtained describing the post-service throat surgery reported by the Veteran, please opine as to whether it is at least as likely as not (probability of 50 percent or more) that the throat surgery treated symptoms now diagnosable as sleep apnea, or otherwise related to that condition in any way. To the extent possible, a discussion of the facts relating to this surgery, and the medical principles involved would be of considerable assistance to the Board. c. After reviewing the treatise evidence presented by the Veteran, and the August 2016 opinion letter by Dr. LR, please opine as to whether it is at least as likely as not (probability of 50 percent or more) that the Veteran's sleep apnea is due to or a result of his service-connected PTSD? d. Also considering the medical treatise and opinion evidence listed above, is it at least as likely as not (probability of 50 percent or more) that the Veteran's sleep apnea has been aggravated (i.e. increased in severity or worsened beyond its natural progress) due to his service-connected PTSD? If aggravation is found, the examiner should also identify and describe the following medical issues to the extent possible: i. The baseline manifestations of the disorder existing prior to aggravation by service-connected disability; ii. The increased manifestations which, in the examiner's opinion, are due to the service-connected disorder. A clear and complete rationale for any opinions or conclusions expressed should be provided. If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Undertake any other development deemed warranted, and then readjudicate the Veteran's claim on the basis of the additional evidence. If the benefit sought on appeal is not granted, provide the Veteran and his representative with a Supplemental Statement of the Case, then return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K.J. ALIBRANDO 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).