Citation Nr: 1802965 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-00 230A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran had active military service from July 1987 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In April 2012, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In April 2014, the Board remanded the case for additional development. In February 2017, the Board denied service connection for sleep apnea. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). Per a September 2017 Joint Motion for Remand (JMR) and October 2017 Court Order, the Board's decision was vacated and remanded for compliance with instructions in the JMR. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A remand is required in order to comply with the terms of the JMR. The Court found that the May 2014 VA examination is inadequate because it does not comply with the terms of the Board's April 2014 remand order. See Stegall v. West, 11 Vet.App. 268, 271 (1998). Specifically, the Court determined that the May 2014 VA examiner "failed to take into account several statements that the Board had ordered the examiner to consider." The Court noted that the April 2014 remand instructed the VA examiner to discuss the Veteran's statements regarding his symptoms during service, and W.H.'s statement regarding the Veteran's in-service snoring, gasping for air, and daytime naps. Although these statements were of record at the time of the May 2014 VA examination, the examiner stated that this evidence was "not found in [claims] file to review and consider." The JMR therefore directs the Board to obtain an adequate examination that considers these statements. Additionally, the Court instructed that the new VA examination must contain a more detailed opinion with respect to the theory of aggravation. Specifically, the Court found that the VA examiner "must address in more detail the impact of Appellant's rhinitis and sinusitis on Appellant's sleep apnea, including whether the rhinitis and sinusitis interfere with his use of a CPAP mask and aggravate Appellant's sleep apnea while Appellant is asleep." Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination with a different examiner than the examiner who performed the May 2014 VA examination to determine the nature and etiology of the Veteran's sleep apnea. The claims file must be made available to the examiner for review and the examiner must indicate that the review was completed. Any indicated studies must be completed. The examiner must address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea began in service, was caused by service, or is otherwise related to active service. In doing so, the VA examiner must discuss the notation of snoring in the service treatment records, the Veteran's statements regarding his symptoms during active service, and W.H.'s statement (received April 12, 2010) regarding the Veteran's snoring, gasping for air, and daytime naps. b. If the above opinion is negative, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any sleep apnea was caused or aggravated by the Veteran's service-connected disabilities (chronic sinusitis and allergic rhinitis, status post septoplasty). Aggravation is defined as a worsening beyond the natural progression of the disease or disability. In doing so, the VA examiner must consider the May 2009 VA examiner's notation that the Veteran's interference with breathing through his nose interfered in his use of the CPAP mask that he uses for sleep apnea, and the May 2014 VA examiner's notation of evidence that the Veteran "cannot tolerate" the CPAP mask and that his rhinitis symptoms "occasionally interfere[]" with the CPAP. A clear rationale must be provided for any opinion reached. 2. Then, readjudicate the issue on appeal. If the benefit sought is not granted, provide the Veteran and his representative a Supplemental Statement of the Case. Allow an opportunity for response and return the case to the Board, if in order. 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 (West 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), 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).