Citation Nr: 18153198 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-50 597 DATE: November 28, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial compensable rating for a right hip contusion is remanded. REASONS FOR REMAND The Veteran had active military service from April 1987 to December 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. Respecting the sleep apnea claim, the Veteran contends that his symptoms of sleep apnea had their onset during military service. Alternatively, he argues in his October 2016 substantive appeal, VA Form 9, that his sleep apnea is secondary to his service-connected deviated septum. The Veteran was provided a VA examination in July 2013. Sleep study results were positive for mild to moderate obstructive sleep apnea. The examiner concluded that the elevated BMI with residual obstructive sleep apnea was less likely caused by or related to military service. The Board finds that the July 2013 VA examination is insufficient to determine the sleep apnea claim on appeal. At the outset, the examiner failed to provide a rationale to support his conclusion that the appellant’s sleep apnea is not related to miliary service. Additionally, there is no indication that the examiner considered the Veteran’s report regarding the onset of sleep apnea symptoms, to include snoring and excessive daytime sleepiness reported at the time of his November 2011 military retirement examination. Lastly, while the examiner concluded that the Veteran’s sleep apnea was not related to military service, an opinion regarding secondary service connection was not obtained. For the foregoing reasons, the sleep apnea claim must be remanded in order to obtain a medical opinion that adequately addresses the facts of this case and the Veteran’s contentions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Regarding his right hip, the Veteran was last examined in July 2013. At that time, it was noted that the Veteran denied any limitation of function in the right hip. On physical examination, there was no objective evidence of painful motion. In the November 2018 appellate brief, the Veteran’s representative asserted that the Veteran had pain in the right hip, to specifically include weather-related aches, pain, and nerve irritation. In light of the lay contentions suggesting that the Veteran’s right hip symptoms have increased in severity, the Board finds that he should be afforded a new VA examination to obtain contemporaneous, pertinent information to assess the current nature and severity of his right hip disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Finally, on remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Pensacola and Biloxi VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Obtain an addendum opinion from an appropriate physician regarding whether nature and etiology of the Veteran’s sleep apnea. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. A VA examination may be provided if deemed appropriate. The clinician is to provide opinions to the following: (a) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea was incurred in service or is otherwise causally related to the Veteran’s active service or any incident therein? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea was caused by his service-connected deviated nasal septum? (c) Is it at least as likely as (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea has been aggravated (chronically worsened) by his service-connected deviated nasal septum? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time. The examiner must address all three opinions above and should also provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. The clinician must also discuss the Veteran’s lay contentions regarding the onset of his sleep apnea symptoms and the November 2011 military retirement examination noting snoring and excessive daytime sleepiness. 3. Schedule the Veteran for an appropriate VA orthopedic examination to assess the severity his service-connected right hip disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examination report should include range of motion in degrees for the Veteran’s right hip. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should determine whether the right hip is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to weakened movement, excess fatigability, incoordination, flare-ups, or pain, if possible. The examiner must estimate any functional loss in terms of additional degrees of limited motion of the right hip during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel