Citation Nr: 1807488 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-21 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected diabetes mellitus type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel INTRODUCTION The Veteran had active service from October 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of the Veteran's claims file was subsequently transferred to the VA RO in Albuquerque, New Mexico. In June 2016, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. In a March 2013 rating decision, the Albuquerque, New Mexiso, RO granted the Veteran's claims for service connection for peripheral neuropathy of the upper and lower extremities and erectile dysfunction. In a March 2014 rating decision, the RO granted the Veteran's claims for service connection for posttraumatic stress disorder (PTSD), tinnitus and bilateral hearing loss. In March 2016, the RO granted an earlier effective date for the Veteran's PTSD, tinnitus and bilateral hearing loss disabilities. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board has determined that additional development of the Veteran's claim is necessary. The Board requires an addendum opinion to fully and fairly evaluate his claim. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran provide any service treatment records he possesses or identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 2. Obtain any outstanding VA medical records and associate them with the claims file, to include San Diego and Oceanside VA medical centers. 3. Return the claims file to the July 2011 VA examiner and request he re-review the claims file and SPECIFICALLY respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the etiology of the Veteran's obstructive sleep apnea. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Is the Veteran's current obstructive sleep apnea diagnosis proximately due to or aggravated (e.g. worsened, and if so, to what degree) by any of the Veteran's service-connected disabilities? [i.e. diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, erectile dysfunction, PTSD, tinnitus, and bilateral hearing loss] b) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner's attention is drawn to the following: * The Veteran was diagnosed with diabetes mellitus type II in 2002. * The Veteran was diagnosed as obese in April 2003. See VBMS entry dated May 14, 2015, titled "Capri," page 381 of 391. * The Veteran was advised that the health risks of obesity included sleep apnea in March 2010. See VBMS entry dated May 14, 2015, titled "Capri," page 288 of 391. * The Veteran was diagnosed with severe obstructive sleep apnea in October 2010. See VBMS entry dated August, 9, 2011, titled "Third Party Correspondence," page 1 of 2. * The Veteran was referred for a nutritional assessment consultation in January 2013 due to his obesity and diabetes mellitus type II. See VBMS entry dated February 25, 2014, titled "Capri," page 86 of 127. * Service connection is in effect for diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, erectile dysfunction, PTSD, tinnitus, and bilateral hearing loss. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. The examiner should schedule a new examination only if necessary to provide an adequate opinion. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 4. Review the VA examiner's report(s) to ensure that he or she adequately responded to the above instructions, including providing an adequate explanation in support of the requested opinions. If the report(s) is (are) deficient in this regard, return the case to the VA examiner for further review and discussion. 5. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 (West 2014). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).