Citation Nr: 1807611 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-21 102A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), asthma and bronchitis, and traumatic brain injury (TBI) with headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service from November 1991 to August 1994 and October 2004 to January 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In October 2017 the Veteran testified before the undersigned Veterans Law Judge. A transcript of the testimony offered at the hearing has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that he has obstructive sleep apnea secondary to service connected PTSD, asthma and bronchitis and/or TBI with headaches. VA obtained an examination to address his contentions in May 2014. The examination report reflects assessment of sleep apnea after service, with the examiner remarking that "no event or exposure" in service "causes" sleep apnea. The examiner did not offer a clear opinion on direct service connection, but found it less likely than not that the Veteran's service-connected respiratory disability, PTSD and TBI with headaches caused the Veteran's obstructive sleep apnea. The examiner offered no opinion on aggravation. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. The examination report is insufficient. The examiner did not address the question of direct service connection. It is noted that the Veteran has asserted a history of symptoms, e.g. snoring and daytime somnolence, in and since service, particularly since his deployment in 2004. The examiner also failed to address whether the service connected PTSD, asthma and bronchitis and/or TBI with headaches aggravated obstructive sleep apnea. Accordingly, the examination report is returned. 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for the purpose of ascertaining the, presence, nature and likely etiology of obstructive sleep apnea (OSA). The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims file should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that OSA was incurred in, or is attributable to, service. It is noted that the Veteran has asserted a history of symptoms, e.g. snoring and daytime somnolence, in and since service, particularly since his deployment in 2004. If the examiner finds it less likely than not that OSA was incurred in, or is attributable to, service, the examiner is asked to address whether it is at least as likely as not that OSA has been caused or aggravated by the service-connected PTSD, asthma and bronchitis and/or TBI with headaches. If aggravation is found, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation to the extent possible. Any and all opinions must be accompanied by a complete rationale. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. 2. Then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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 that are 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2002), 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) (2016).