Citation Nr: 18148505 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 18-01 170 DATE: November 7, 2018 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran had verified active service from October 1969 to August 1971 and from January 1991 to June 1991, with additional service from 1973 to 1991 in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2015 by a Department of Veterans Affairs (VA) Regional Office. The May 2015 rating decision denied entitlement to service connection for erectile dysfunction and entitlement to special monthly compensation based on loss of use of a creative organ. The Veteran filed a timely notice of disagreement with such decision but indicated on his VA Form 9 that he wished to pursue only the issue of entitlement to service connection for obstructive sleep apnea. As such, the claims for entitlement to service connection for erectile dysfunction and entitlement to special monthly compensation based on loss of use of a creative organ are not ripe for appellate review. In a statement attached to his substantive appeal, the Veteran asserted VA had erroneously denied service connection for hypothyroidism. However, inasmuch as such claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ) in the first instance, the Board does not have jurisdiction over it. In this regard, the Board notes that, effective March 24, 2015, a claim for benefits must be submitted on an application form prescribed by the Secretary. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014) (Dates). Therefore, if the Veteran wishes to reopen the service connection claim for hypothyroidism, he and/or his attorney must file the appropriate application(s) with the AOJ. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). In June 2018, following the submission of VA Form 646 by the American Legion (the Veteran’s representative at the time), the Veteran changed the appointment of his representative to the Florida Department of Veterans Affairs. As the Board remands the issue on appeal herein, there is no prejudice in proceeding with appellate review. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disability The Veteran asserts his current obstructive sleep apnea is proximately due to and/or aggravated by his service-connected disabilities. Here, the record reflects a diagnosis of severe obstructive sleep apnea in March 2015. Relating to the appeal, the Veteran underwent VA examination in September 2017, the report of which shows the examiner opined the Veteran’s sleep apnea was less likely than not proximately due to or the result of diabetes mellitus. The examiner found that although diabetes mellitus was a risk factor in the development of sleep apnea, it did not necessary mean the Veteran’s diabetes mellitus was the sole cause for his sleep apnea according to the medical literature. Upon review, the Board finds the examiner’s opinion inadequate for purpose of determining service connection when considering all theories of entitlement pertinent to this case. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). First, the VA examiner did not comment upon whether the Veteran’s service-connected diabetes mellitus, type II, aggravated his obstructive sleep apnea beyond the natural progression of the disease. Second, the Board notes the Veteran’s assertions that his obstructive sleep apnea is proximately due to and/or aggravated by other service-connected disabilities, specifically to include hypertension, peripheral neuropathy, and anxiety disorder. As the VA examiner did not address all contentions and theories of entitlement raised by the record, the Board finds remand is warranted to obtain an addendum opinion. 38 U.S.C. §§ 5103A, 5107(a) (2012); 38 C.F.R. § 3.159 (2017). Finally, the Board notes the record indicates the Veteran had additional service for which VA has neither requested nor obtained any associated service personnel records or service treatment records. Accordingly, proper action and notice must be undertaken on remand to obtain any such available records. The matter is REMANDED for the following actions: 1. Contact the National Personnel Records Center, the Records Management Center, the Veteran’s units, and any other appropriate location, to request the service treatment records and service personnel records pertaining to the Veteran’s service in the National Guard and any other verified period of service. The request specifically should include all records from 1973 to 1991. The request must ask for all pay records and any further information necessary to verify the dates of the Veteran’s service on active duty, active duty for training, and inactive duty for training. Continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. If unable to secure the same, notify the Veteran and (a) identify the specific records; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his obstructive sleep apnea. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea had its onset in service or is otherwise the result of an in-service injury, disease, or illness. The examiner is also asked to opine 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 a service-connected disability. The Veteran is service-connected for diabetes mellitus, type II; peripheral neuropathy of the bilateral upper and lower extremities; hypertension; bilateral heel spurs; and unspecified anxiety disorder. Aggravation is defined for these purposes as a worsening of the underlying condition, beyond the natural progression of the disease, versus a temporary flare-up of symptoms. If the examiner finds the Veteran’s obstructive sleep apnea has been permanently aggravated and/or worsened by service-connected disability, the degree of worsening should be identified, if possible. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel