Citation Nr: 18148249 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-17 004 DATE: November 8, 2018 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected narcolepsy with cataplexy, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2008 to May 2012. He testified before the undersigned Veterans Law Judge at a March 2018 Board hearing. Upon review, remand is required for a VA examination and opinion and to obtain outstanding medical records. The Veteran has not been afforded a VA examination as part of his sleep apnea claim. The evidence of record indicated that the Veteran has been diagnosed with sleep apnea. See, e.g., April 2014 VA Treatment Record (submitted by the Veteran). The Veteran is also service-connected for narcolepsy with cataplexy. At the July 2015 Decision Review Officer (DRO) hearing, the Veteran reported that he had symptoms of sleep apnea and narcolepsy during his active service. See July 2015 DRO Hearing Transcript, Pages 3-5. He referenced that narcolepsy symptoms were “blackouts” and that a Dr. K. told him symptoms associated with sleep apnea that he had during active service included “exhaustion, unable to focus…I wasn’t getting any REM sleep.” He also reported that his wife “complained a lot about the snoring” and that “she said…I’ll wake up out of my sleep like…I can’t breathe…but she said it doesn’t happen anymore because of my CPAP.” At the March 2018 Board hearing, the Veteran reported having various signs or symptoms of sleep apnea during his active service, to include a problem “getting restful sleep.” See March 2018 Board Hearing Transcript, page 3. The Veteran also stated, in response to a question of whether Dr. K. “ever indicate[d] that sleep apnea…is a direct result of your military service,” that Dr. K. “feels that it was direct, because it didn’t show up, from my statements that I gave him, that I didn’t have issues with sleeping.” Service treatment records (STRs) of record included various records related to sleep. In this regard, a December 2010 diagnostic polysomnogram report noted self-reported symptoms from the Veteran of “difficulties initiating and maintaining sleep, sleeping too little, restless sleep, sleeping problems regardless of location, sleep paralysis, hypnagogic/hypnopompic hallucinations, unrefreshing sleep, symptoms suggestive of cataplexy, hyperosmia, and drowsy driving.” The impression of the study noted “mild snoring without evidence for discrete respiratory events” and stated that “[t]he findings on this polysomnography are not consistent with sleep disordered breathing.” Also of record was a September 2011 diagnostic polysomnogram report, which also noted various self-reported symptoms from the Veteran, that noted an impression of “[t]he findings on this polysomnography are not consistent with sleep disordered breathing.” In addition, a September 2011 multiple sleep latency test report noted an impression of “findings are consistent with Narcolepsy with Cataplexy.” In general, the STRs did not note a diagnosis of sleep apnea, but diagnosed narcolepsy, which was also noted on Medical Evaluation Board and Physical Evaluation Board documents. Post-service records included a November 2014 VA treatment record from Dr. K. that stated that sleep apnea “was diagnosed in December 2013.” As noted, however, the Veteran has contended, essentially, that symptoms present during his active service were symptoms of sleep apnea and that a medical professional indicated that his sleep apnea was the result of his active service (specifically when he stated at the Board hearing that Dr. K. “feels that it was direct”). In light of the evidence and the Veteran’s contentions, which raise medical issues that the Board is not competent to address, the Board finds that the “low threshold” for a VA examination and opinion have been met and remand is therefore required for such action, as outlined further in the remand directives below. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the Veteran stated on his August 2014 notice of disagreement (NOD) that “sleep apnea is secondary to narcolepsy with cataplexy not direct.” A July 2014 Narcolepsy Disability Benefits Questionnaire (DBQ), completed as part of a separate claim, included the statement that “[n]arcolepsy with subjective report of improvement following start of [X]yrem, and CPAP for new/unrelated [obstructive sleep apnea].” Initially, there is no explanation or rationale for the conclusion that sleep apnea and narcolepsy were “unrelated.” In addition, secondary service connection is also available based on aggravation and United States Court of Appeals for Veterans Claims has found that similar language (the phrase “related to”) does not clearly encompass a discussion of aggravation in the secondary service connection context. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013); 38 C.F.R. § 3.310(b). As the Veteran has specifically raised the issue of secondary service connection between sleep apnea and narcolepsy, which involves a medical issue that the Board is not competent to address, a secondary service connection opinion is also warranted on remand, as outlined further in the remand directives below. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition, while on remand, outstanding VA treatment records must be obtained. Records from the West Haven VA system appear to be complete from September 2014 to February 2017 (and it appears that the Veteran thereafter moved and no longer received care at this facility). Records prior to September 2014 appear to be incomplete. In this regard, the Veteran submitted an April 2014 VA treatment record (cited above that noted a diagnosis of sleep apnea) that was not included in the VA treatment records of record. In addition, as noted, the Veteran discussed at his hearings treatment from a VA Dr. K. A September 2014 VA treatment record noted that the Veteran was seen by Dr. K. on April 4, 2012, but no such record is of record and a June 2012 sleep disorder follow-up treatment record stated “[n]o changes since LCV [perhaps an abbreviation for “last clinical visit”] Apr[il].” Also, Social Security Administration (SSA) records included a listing of various VA treatment records and listed “07/18/12 – VA – Consult note [obstructive sleep apnea] p[atien]t [diagnosed] with narcolepsy in 2011.” As such, all records from the New Haven VA system from prior to September 2014, to include any records related to consults, must be obtained. In addition, records from the Biloxi VA system are of record dated from March 2017 to June 2017 and therefore any records dated from June 2017 from this system must also be obtained. Finally, an April 2017 VA treatment note referenced the Veteran receiving medication for narcolepsy from a non-VA provider. As such, while on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records or complete a release for such providers; if any releases are returned, VA must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (stating that “[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records”). The matter is REMANDED for the following action: 1. Obtain the following VA treatment records: (a.) All records from the New Haven VA system from prior to September 2014, to include any records related to consults. (b.) Records from the Biloxi VA System from June 2017. 2. Contact the Veteran and request that he either provides any outstanding relevant private treatment records or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. 3. Afford the Veteran a VA examination with respect to his sleep apnea claim. The examiner must provide an opinion addressing the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that sleep apnea had its onset during active service or is caused or aggravated by any in-service disease, event, or injury. While review of the entire claims folder is required, attention is invited to the Veteran’s contention that, essentially, symptoms present during his active service were symptoms of sleep apnea (to include Dr. K. telling him that symptoms associated with sleep apnea that he had during active service included “exhaustion, unable to focus…I wasn’t getting any REM sleep”) and that Dr. K. indicated that his sleep apnea was the result of his active service (specifically when he stated at the March 2018 Board hearing that Dr. K. “feels that it was direct”). (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that sleep apnea is due to or caused by the Veteran’s service-connected narcolepsy with cataplexy. (c.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that sleep apnea has been aggravated (i.e., increased in severity) by the Veteran’s service-connected narcolepsy with cataplexy. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Counsel