Citation Nr: 1806803 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 10-37 960 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include as secondary to a service-connected disability. 2. Entitlement to a total disability rating based on individual unemployability due to f service connected disabilities (TDIU). ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active service from November 1977 to June 1995. This appeal to the Board of Veterans' Appeals (Board) arose from July 2015 and October 2015 rating decisions by the RO. In the July 2015 rating decision, the RO, inter alia, denied a compensable rating for hypertension. In August 2015, the Veteran filed a notice of disagreement (NOD), and in August 2016, the RO issued a statement of the case (SOC). The Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2016. In the October 2015 rating decision, the RO, inter alia, denied service connection for a sleep disorder. In November 2015, the Veteran filed an NOD, and the RO issued an SOC in August 2016. In September 2016, the Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). With respect to the TDIU claim, in November 2014, the Board inferred a claim for a TDIU, and remanded that claim, along with the other claims on appeal, to the agency of original jurisdiction (AOJ) for further action, to include development, and adjudication of the TDIU claim, in the first instance. After accomplishing further action, in an August 2016 rating decision, the AOJ denied the claim for a TDIU, then issued a September 2016,supplemental SOC (SSOC) reflecting the denial of all claims on appeal, to include a TDIU. In March 2017, the Board issued a decision granting a higher, 10 percent rating for service-connected hypertension, and remanded the remaining claims for a sleep disorder and the intertwined TDIU claim to the AOJ for further action, to include additional development of the evidence,. After accomplishing further finding that the claim for a TDIU was inextricably intertwined with the claim for service connection for a sleep disorder. However, the AOJ continued to deny the remaining claims on appeal (as reflected in a November 2017 SSOC) and returned these matters to the Board. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Legacy Content Manager (Virtual VA) claims processing systems. For reasons expressed below, the remaining claims on appeal are, again, being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional AOJ action is warranted for the claims on appeal. As regards the Veteran's claim for a sleep disorder, in its March 2017 remand, the Board instructed the VA examiner to opine whether it was at least as likely as not that the Veteran's sleep disorder, to include obstructive sleep apnea (OSA): 1) either began during or was otherwise caused by his military service, to include the frequent sleeping trouble he experienced therein; 2) was directly caused by a service-connected disability; and 3) was aggravated (i.e. permanently made worse beyond the natural progression of the disability) by a service-connected disability. A September 2017 VA examination report from a VA psychologist reflects a diagnosis of moderate OSA with apnea hypopnea based on a 2015 sleep test. The examiner opined that the Veteran's OSA was less likely than not related to service or secondary to a service-connected disability. The examiner stated that "while plausible," the medical evidence did not indicate reports or treatments for sleep issues related to the Veteran's service-connected neck injury while he was in the military. The examiner noted that in May 2004 and November 2004, the Veteran denied anxiety, depression, and changes in his sleep patterns; and in September 2009 he endorsed stress and sleep disturbance but without any specific cause. In addition, the examiner found that "it [was] plausible the Veteran's sleep issues [had] been exacerbated by neck pain," but that the Veteran did not meet the "diagnostic criteria for a mental health sleep disorder at this time." A September 2017 VA opinion from a nurse practitioner reflects that intervertebral disc syndrome (IVDS) with surgical repair can frequently lead to sleep apnea. However, the nurse noted that the Veteran had not had surgical repair for his service-connected cervical spine disability, and that there were no other likely pathophysiologic connection between any of his other service-connected conditions and his claimed OSA. As such, the examiner found that the Veteran's OSA was most likely due to age, obesity, and genetic factors unrelated to his service-connected conditions, The Board notes, however, that in April 2017 and July 2017, the Veteran and his wife submitted statements alleging that the Veteran first started experiencing sleeping problems and daytime drowsiness during service, and described continuity of symptomatology for the Veteran's sleep problems since service. In November 2017, the Veteran submitted a statement indicating that his sleep problems/disturbances were due to his service-connected hiatal hernia and cervical spine disability. In this instance, neither of the examiners addressed the Veteran and his wife's competent statements, nor opined, in addressing secondary service connection, as to whether the Veteran's sleep problems were caused or aggravated by his service-connected hiatal hernia. Similarly, the psychologist based her opinion entirely on the lack of treatment records during service, without consideration of the competent lay assertions of record, to include as to the nature, onset, and continuity of alleged symptoms of sleep apnea. The Board further notes that here is no requirement that a sleep disorder secondary to a service-connected disability manifest during service, only that it be caused or aggravated by the service-connected disability. See 38 C.F.R. § 3.310 (2017). In addition, the Board finds that the VA examiners opinions seem internally consistent, and not fully explained, or incomplete without sufficient rationale for the opinion expressed. The VA psychologist first opined that it "plausible" that the Veteran's sleep disorder started in service, or was due to or was aggravated by the Veteran's service-connected neck disability, but then provided a negative opinion improperly based on a lack of medical records and on the finding that the Veteran did not have a mental health sleep disorder, without addressing the Veteran's diagnosed OSA. Likewise, the VA nurse practitioner based her negative service incurrence opinion on a lack of treatment records, and did not discuss whether IVDS, alone, could cause or aggravate OSA. Given the above-noted deficiencies, the Board finds that the evidence currently of record is inadequate to resolve the sleep apnea claim, and that further medical opinions addressing the etiology of sleep apnea-under both direct and all secondary theories of entitlement, based on full consideration of the Veteran's documented history and all lay assertions, and supported by complete, clearly-stated rationale-are needed to resolve the service connection claim. See Barr v. Nicholson, 21 Vet. App. 30 (2007) (holding that once VA undertakes the effort to provide an examination or obtain medical opinion, it must ensure that one is provided or obtained that is adequate for the determination being made). To this end, the AOJ sshould obtain an addendum opinion from an appropriate physician with experience in the diagnosis and treatment of sleep disorders (particularly, sleep apnea), based on claims file review (if possible). The AOJ should only arrange for further examination of the Veteran if one deemed necessary in the judgment of the physician designated to provide the addendum opinions. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may well result in denial of the service connection claim. See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. As the disposition of the service connection claim could impact the claim for a TDIU, the claims should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As it follows that consideration of the TDIU claim, at this juncture, would be premature, this matter is being remanded, as well. Prior to arranging to obtain the further medical opinions described above, to ensure all due process requirements are met, and record with respect to both remaining claims is complete, the AOJ should undertake appropriate action to associate with the claims file all outstanding, pertinent records. As for VA records, the claims file includes VA treatment records from the Fayetteville VA Medical Center (VAMC) dated through October 2017. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the AOJ should obtain from the Fayetteville VAMC all records of pertinent treatment since October 2017, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2017) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining claims on appeal (particularly, as regards private (non-VA) medical treatment and/or employment) explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1) (2012); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. 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 prior to adjudicating the remaining claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Fayetteville VAMC (and any associated facilities) all outstanding, pertinent records of evaluation and/or treatment of the Veteran, particularly records dated from October 2017 to the present. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the remaining 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) and/or employment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him 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 from each contacted entity has been associated with the electronic claims file, arrange to obtain an addendum opinion from an appropriate physician with experience in the diagnosis and treatment of sleep disorders, based on claims file review (if possible). Only arrange for the Veteran to undergo examination, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manger)), to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and clinical findings should be reported in detail. Following review of the record, the physician 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 sleep apnea: (a) had its onset during service, or is otherwise medically-related to service, to include the symptoms of frequent trouble sleeping and day time drowsiness reportedly experienced and/or observed therein; or, if not,. (b)was caused OR is or has been aggravated (worsened beyond the natural progression) by one or more service-connected disability(ies)-specifically, cervical spine disability, hiatal hernia and/or IVDS. Both the individual and combined effects of service-connected disabilities should be addressed. If aggravation is found, the physician should attempt to quantify the degree of additional disability resulting from aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to the aggravation. In addressing all the above, the physician must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions-to include the Veteran and his wife's written statements that he has experienced sleep problems and daytime drowsiness since service; the Veteran's statements concerning how his stomach and neck disabilities exacerbate his sleeping problems; as well as all competent lay assertions as to the nature, onset, and continuity of symptoms. Notably, in addressing in-service incurrence (in particular), the lack of a diagnosis of sleep apnea or treatment of sleep-apnea related symptoms during service should not, alone, provide the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and his wife is competent to report her observations. Such reports must be specifically be acknowledged and considered in formulating opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. 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 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims remaining on appeal in light of all pertinent evidence (to include all that added to the VBMS and Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority. 7. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2017).