Citation Nr: 1805532 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-10 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1977 to July 1984. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, PA. The Veteran testified before the undersigned in an August 2016 videoconference hearing. A transcript of that 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 I. Gastroesophageal Reflux Disease (GERD) The Veteran was afforded a VA examination in September 2011. The VA examiner diagnosed the Veteran with GERD, but thereafter provided a negative nexus medical opinion regarding the etiology of the disorder. However, in providing the rationale for his opinion, the VA examiner relied on the errant contention that the Veteran had only one complaint of symptoms of GERD during service. The Board notes the Veteran's service treatment records that indicate that he was treated for stomach issues on multiple occasions during service. Therefore, as pertinent medical evidence was not considered by the examiner in forming the medical opinion, the Board finds that the examiner's opinion is inadequate, as the opinion reached was based on an inaccurate factual premise. Accordingly, the Board finds that the Veteran should be provided a new VA examination and medical opinion on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). II. Sleep Apnea The record in this case indicates that the Veteran has a current diagnosis of sleep apnea. The Veteran contends that he began experiencing symptoms of sleep apnea during service. Additionally, the Veteran has submitted multiple lay statements from family members concerning his current claimed sleep apnea and its onset. Thus far, no examination or opinion has been provided on this issue. Thus, a remand seeking such an examination and opinion is necessary. See 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination. Access to Virtual records must be made available to the VA examiner for review in conjunction with the examination. The examiner should provide the following opinions: a.) Whether it is at least as likely as not (50% or greater probability) that the Veteran's GERD had its onset in service or is related to an event, injury or disease incurred in service. Attention is invited to the Veteran's service treatment records indicating that he was treated for stomach issues on multiple occasions during service. b.) Whether it is at least as likely as not (50% or greater probability) that the Veteran's sleep apnea had its onset in service or is related to an event, injury or disease incurred in service. The examiner should consider the lay evidence which includes the Veteran's testimony that he snored in service and July 2011 statement from his family regarding symptoms. 2. Thereafter, readjudicate the issues of entitlement to service connection for GERD and sleep apnea. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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). _________________________________________________ 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).