Citation Nr: 1804959 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-51 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel INTRODUCTION 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 Veteran served on active duty in the Navy from March 1951 to March 1955 and from April 1955 to March 1974, to include a period of service in the Republic of Vietnam from October 1968 to October 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In October 2017, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for sleep apnea which he believes began in service. In this regard, the Veteran's service treatment records reflect that a month before his separation from service in March 1974, the Veteran indicated on a report of medical history that he had "frequent trouble sleeping." His service records otherwise are negative for complaints of or findings consistent with sleep apnea. Post-service records reflect that during a May 1999 consultation, a private physician indicated that he thought it was likely the Veteran had significant obstructive sleep apnea, in light of the Veteran's obesity, loud snoring, and fatigue during the day. The physician made no diagnosis, but ordered a sleep study. A February 2004 sleep study, however, returned no evidence of obstructive sleep apnea. During a hospital visit in June 2008, the entries "history of sleep apnea" and "no history of obstructive sleep apnea" were both entered into the Veteran's notes at different times of the same day. In March 2014, a confirmed diagnosis of sleep apnea was made. At his hearing before the Board in October 2017, the Veteran testified that he had had symptoms of sleep apnea starting during his service in 1971, although he did not report them until afterward. He testified that he was first diagnosed with sleep apnea in 1978 or 1979, and that he used a CPAP machine for around fourteen years until his doctor determined that he no longer had the condition. Roughly six months after that, the Veteran began to experience symptoms again. He testified that he eventually returned to the doctor in 2014, was diagnosed with sleep apnea again, and was given another CPAP machine. At the hearing, the Veteran's representative also raised the possibility that the Veteran's obstructive sleep apnea could be secondary to his service-connected prostate cancer. It is unclear on the basis of this evidence whether the Veteran's current sleep apnea had its onset in or is otherwise related to service. Therefore, a VA examination and opinion is necessary to clarify this issue. 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. Schedule the Veteran for a VA examination to determine whether there is a nexus between the Veteran's current obstructive sleep apnea and his active duty service. The examiner should, upon review of the claims file: a) Determine whether it is at least as likely as not (50 percent probability or more) that the Veteran's obstructive sleep apnea: i) Was incurred in or aggravated by service; ii) Results from another injury or disease incurred in or aggravated by service; or iii) Results from the Veteran's service-connected prostate cancer. b) In light of the Veteran's hearing testimony that around 1992 or 1993(fourteen years after the time of his original diagnosis, according to his testimony) his doctor told him he no longer had sleep apnea, and that six months later his symptoms resumed, the examiner should give an opinion as to whether it is possible to have obstructive sleep apnea that either resolves (or goes into remission) or that goes undetected. c) In light of the suggestion in the May 1999 private treatment record that the Veteran's obesity may be connected to his sleep apnea, the examiner should give an opinion as to: i) Whether the Veteran's current obstructive sleep apnea is related to his obesity; ii) Whether it is possible for obstructive sleep apnea to come and go with weight gain and loss; and if so iii) Whether the Veteran's obstructive sleep apnea came and went with any weight gain or loss he may have experienced. The examiner must provide a fully articulated medical rationale for the opinion expressed, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained. 2. After completing the above actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The appellant 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). ______________________________________________ S. C. KREMBS 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).