Citation Nr: 18160779 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-20 856 DATE: December 27, 2018 REMANDED The claim of entitlement to service connection for a sinus disability is remanded. The claim of entitlement to service connection for a heart/cardiovascular disability is remanded. The claim of entitlement to service connection for hypertension is remanded. The claim of entitlement to service connection for a sleep disorder, to include insomnia and sleep apnea, is remanded. The claim of entitlement to service connection for depression is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1978 to July 1988, and from April 1990 to August 2000. This appeal before the Board of Veterans’ Appeals (Board) arose from an April 2014 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, inter alia, denied service connection for a sleep disorder, hypertension, depression, sinusitis, and heart/cardiovascular disability. The Veteran disagreed with these denials, and this appeal ensued. The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the service connection claims on appeal is warranted. The Veteran has variously asserted that she developed her claimed disabilities during or as a result of her active service. With respect to the claimed sinus disability, in a statement received in May 2016, she asserted that during her many years of active service, she had been stationed in three locations with air pollution or otherwise poor quality air issues. These places included Kami Seya, Japan; Naples, Italy; and Washington, D.C. She further asserted that she lived near Solfatara while stationed in Naples, which subjected her to frequent and strong sulfur fumes. She reported receiving treatment, including Sudafed and a nasal spray, for her sinus pressure. She also asserted that her disability was manifested by her having had sinus problems many times during service. In support of her claim, the Veteran also submitted statements provided by her son and daughter, asserting that they witnessed her frequent sinus problems during her active service. Indeed, review of the Veteran’s service treatment records (STRs) reveals that she complained of nasal congestion multiple times, including as early as in July 1982 and September 1986. She reported having suffered a sinus headache for five days in April 1992. During a June 1998 clinical consultation, she complained of having frontal congestion. She was diagnosed with sinusitis. The Veteran was afforded a VA examination for her claimed sinusitis in March 2014. The examiner noted the Veteran had a sinusitis diagnosis in the year 1990. Because the examiner did not provide an opinion as to whether the Veteran had sinusitis that was etiologically related to service, a VA opinion was subsequently obtained in April 2014. In providing the opinion, the VA physician stated that it was less likely than not that the Veteran’s sinusitis was incurred during or as a result of her active service. The examiner based this opinion on the fact that the Veteran had normal sinus films in April 1992, and that she did not complain of sinusitis during her May 2000 separation examination. Thus, the examiner concluded that there was insufficient objective medical evidence of the development of sinusitis during the Veteran’s active service. The Board notes that in providing this opinion, the examiner did not address noted instances of nasal congestion in the Veteran’s STRs dating back to at least July 1982. The examiner additionally did not have the opportunity to address the evidence provided by the Veteran and her children in their supporting statements received in May 2016, which noted her ongoing problems with sinus issues, and her contentions that this may be the result of being stationed in multiple places with poor air quality. Thus, the Board finds that remand is warranted to afford the Veteran a new VA examination to obtain a new opinion as to the nature and etiology of the Veteran’s sinusitis, addressing all the evidence of record. With respect to the Veteran’s claimed sleep disorder and depression, she and her children have asserted in their statements that she has had several sleep-related problems over the last several years, including during her active service, where she was assigned many differed duty shifts, with varying hours, resulting in very diverse and altered sleep patterns. They have additionally asserted that she has experienced greatly varied mood swings, and symptoms of depression that increased over time. They also noted that she was subjected to heightened stress during the last several years of her active service, resulting in periods of depression. The Board additionally notes that the Veteran’s STRs reveal multiple instances of sleep problems, including sleep deprivation, during service. Review of the Veteran’s post-service treatment records reveals multiple instances where she was assessed with depression, including in August 2006, September 2007, April 2009, and October 2010. She was additionally noted to have a history of depressive disorder in August 2013 and August 2014. The record additionally reveals that the Veteran has been assessed with multiple sleep problems. In May 2014, she was diagnosed with obstructive sleep apnea. The sleep study report noted that she suffered from insomnia, loud snoring, and excessive daytime sleepiness that had been occurring for years. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, the Veteran has not been afforded a VA examination for her claimed sleep disorder and depression. Thus, the Board finds that remand of these claims for the requisite VA examination is warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Turning to the Veteran’s claimed cardiovascular/heart disability and hypertension, review of her STRs reveals a notation of left atrial enlargement on echocardiogram reports dated in May 2000. She also complained of having palpitations during a clinical consultation in March 2000. The STRs further document instances where the Veteran was noted to have apparently elevated blood pressure during service, including in March 1998, with a reading of 136/94, and in March 2000, with a reading of 139/90. Post-service treatment records indicate that the Veteran was noted to have left atrial enlargement during a private clinical consultation in August 2014. Additionally, a private neurology report noted the Veteran was suspected of having essential hypertension in August 2009. An assessment of benign essential hypertension was noted in a more recent report dated in September 2013. Given evidence indicating that the Veteran may have current heart disability and hypertension that may have been incurred in or become manifest during her active service, the Board finds that remand of these matters for a VA cardiology examination is warranted. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon, supra. Additionally, the Board notes that an August 2005 treatment report contained within the Veteran’s Tricare records, indicate that she had a prescription for Zoloft for treatment of depression, provided by an outside provider. The Veteran’s mental health treatment records do not appear to have been associated with the claims file. See 38 C.F.R. § 3.159. Thus, prior to arranging for the requested VA examinations, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the service connection claims on appeal, explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In the letter to the Veteran, the AOJ should specifically request that she furnish or, furnish appropriate authorization to obtain, records of her private mental health treatment. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. Additionally, the claims file currently includes VA outpatient treatment records dated through January 2015. Accordingly, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since January 2015. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. These matters are hereby REMANDED for the following action: 1. Obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since January 2015. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records, to specifically include records of her private mental health treatment. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination for sinusitis by an appropriate physician. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran, and review of all pertinent lay and medical evidence, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran’s sinusitis had its onset during, or is otherwise medically related to, her active service, to include as a result of exposure to air pollution and/or poor air quality while stationed in Kami Seya, Japan; Naples, Italy (where she reported living near Solfatara); and/or Washington, D.C. In addressing the above, the physician must consider and discuss all relevant medical evidence, to include evidence of the Veteran having suffered from sinus congestion multiple times and being diagnosed with sinusitis during her active service, and lay evidence, to include statements provided by the Veteran and her children. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA sleep disorder examination by an appropriate medical professional. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify and diagnose all sleep disorders currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved), to include sleep apnea and insomnia. Then, for each such diagnosed and distinct sleep disorder, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the disability had its onset during, or is otherwise medically related to, the Veteran’s active service, to specifically include as a result of her extremely varied work schedule and hours during her active service, which reportedly resulted in varying and altered sleep patterns. In addressing the above, the examiner must consider and discuss all relevant medical and lay evidence, to include evidence of multiple findings of sleep deprivation in the Veteran’s STRs, and assertions made by the Veteran and her family members. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination for depression by an appropriate mental health professional. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify psychiatric disorders diagnosed currently or validly diagnosed at any point pertinent to the current claim, to include depression, even if now asymptomatic or resolved. Then, for each such diagnosed psychiatric disability, to include depression, based on examination of the Veteran, and review of all pertinent lay and medical evidence, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability (a) had its onset during the Veteran’s active service; (b) if a psychosis, was present to a compensable degree within the first post-service year; or (c) is otherwise medically-related to the Veteran’s period of active service, to include as a result of her stressful work environment during her several years of active service, as reported by the Veteran and her family members. In addressing the above, the examiner must consider and discuss all relevant medical and lay evidence, to include the credible reports of the Veteran exhibiting psychiatric disability symptoms during service, including wide mood swings and depression. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 7. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA cardiovascular examination, by an appropriate physician, for claimed heart disability and hypertension. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify and diagnose all current heart/cardiological disabilities, to include left atrial enlargement, and any hypertension, diagnosed currently or validly diagnosed at any point pertinent to the current claim even if now asymptomatic or resolved. For each such diagnosed heart/cardiovascular disability and for any such hypertension, the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the disability had its onset during, or is otherwise medically related to, the Veteran’s active service. In addressing the above, the physician must consider and discuss all relevant medical and lay evidence, to include evidence of the Veteran being noted as having left atrial enlargement, and evidence of elevated blood pressure readings in her STRs. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 8. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the service connection claims on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel