Citation Nr: 18142846 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-43 368 DATE: October 17, 2018 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1984 to January 1985, from October 1987 to June 1998, from March 2003 to June 2003, from January 2004 to July 2004, and from October 2006 to March 2008. The Veteran seeks entitlement to service connection for sleep apnea and residuals of a TBI. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to both claims, in his September 2018 Informal Hearing Presentation, the Veteran’s representative suggested that there are outstanding treatment records from the Marion VA Medical Center in Marion, Illinois. VA treatment records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). As such, any outstanding VA treatment records should be obtained and associated with the claims file. With respect to the claim of entitlement to service connection for sleep apnea, the Veteran has contended that this disability was either caused or aggravated by his service-connected PTSD. The Veteran was provided with a VA Sleep Apnea examination in November 2015, at which time the examiner concluded that his diagnosed obstructive sleep apnea was less likely as not incurred in or caused by difficulties with sleeping during service. However, the VA examiner's opinion did not address the likelihood that sleep apnea was caused or aggravated by the Veteran’s service-connected PTSD. See Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability); see also El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). Accordingly, on remand an adequate opinion must be obtained. With respect to the claim of entitlement to service connection for a TBI, the Veteran was provided with a VA TBI examination in December 2015. At that time, the VA examiner simply concluded that, “Veteran does report an incident that suggests TBI. Unable to confirm TBI or residuals at this time. Review of the Claims File shows lack of objective medical evidence and testing to support diagnosis with chronic residuals at this time. Current complaints in section 2 (assessment of cognitive impairment and other residuals of TBI) are due to another etiology, not TBI.” However, the Board finds the examiner's rationale to be conclusory in nature. Specifically, the examiner did not explain why the Veteran's examination was inconsistent with a TBI, or what type of medical evidence and testing would be sufficient to support a diagnosis with chronic residuals. Additionally, the Board notes that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. See Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010). Thus, the Board finds that the December 2015 VA examination report is inadequate and that a remand for an adequate VA examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one). The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records of treatment of the Veteran, to include any outstanding records from the Marion VA Medical Center in Marion, Illinois, as well as any associated outpatient clinics, and associate them with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Thereafter, provide the Veteran with an appropriate VA examination to determine the etiology of his diagnosed obstructive sleep apnea. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Based on a review of the evidence of record, the clinical examination results, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected PTSD or any other service-connected disability. Aggravation is defined as a worsening beyond the natural progression of the disability. The examiner should note that a finding that a disability is "not due to," "not caused by," and "not related to" a service-connected disability is insufficient to address the question of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). A complete rationale must be provided for the opinion proffered. 3. Provide the Veteran with a VA TBI examination, by an appropriately qualified examiner with training and expertise in TBI, to assess the Veteran's asserted residuals of a TBI. The entire claims file must be made available to the examiner. All indicated tests and studies necessary, including magnetic resonance imaging (MRI), magnetic resonance angiogram (MRA), X-ray, neuropsychological, and neurobehavioral testing should be accomplished (with all results made available prior to the completion of the examination report), and all clinical findings should be reported in detail. If the examiner is unable to conduct the required testing or concludes that any required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should determine whether it is at least as likely as not (50 percent or greater probability) that any current residuals of TBI are etiologically related to active service. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale must be provided for the opinion proffered. If the examiner is unable to provide an opinion without resorting to speculation, then the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 4. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the issues on appeal. If any benefit remains denied, then provide the Veteran and his representative with a Supplemental Statement of the Case, and provide an opportunity to respond before the case is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel