Citation Nr: 1807629 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 15-20 883 ) 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 sinusitis with allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his fiancée, G. H. ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran had active service from November 1986 to December 1989. This matter comes to the Board of Veterans' Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran and his fiancée, G. H., testified before the undersigned Veterans Law Judge (VLJ) at a November 2017 Central Office hearing in Washington, DC, and a transcript of the hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Following a review of the evidence of record, the Board finds that remand is required for further development concerning the Veteran's claim of entitlement to service connection for obstructive sleep apnea; specifically, the Board finds that VA must obtain an adequate medical opinion regarding the Veteran's claim. VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Post-service treatment records document that the Veteran was formally diagnosed with obstructive sleep apnea in May 2014 following a diagnostic sleep study. Service treatment records do not document any complaints, treatment, or diagnosis of obstructive sleep apnea; however, the Veteran and his fiancée have each asserted that his sleep apnea symptoms first had onset during active service. In December 2017, the Veteran's treating VA physician opined, based upon a review of the Veteran's treatment records and a review of medical literature, that the Veteran's service-connected sinusitis with allergic rhinitis was aggravated by and more likely than not had a relationship with his undiagnosed sleep apnea while on active duty. The physician also opined that it was more likely than not that the Veteran's sleep apnea was aggravated or caused by his service-connected chronic sinusitis/allergic rhinitis. Significantly, the Board finds that the opinions discussed above provide at least some indication that the Veteran's claimed obstructive sleep apnea may be associated with his active service or his service-connected sinusitis with allergic rhinitis. As such, the Board finds that a remand is necessary to obtain an adequate VA opinion regarding the etiology of the Veteran's obstructive sleep apnea. See 38 C.F.R. § 3.159(c)(4)(i); see also McLendon, 20 Vet. App. at 81. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Arrange for the claims file to be reviewed by a qualified VA examiner regarding the Veteran's claim of entitlement to service connection for obstructive sleep apnea. The entire claims file and a copy of this remand should be made available to and reviewed by the examiner in conjunction with the opinion, and all indicated studies should be conducted, including a full VA examination if deemed necessary by the examiner. In other words, a physical examination is not necessary unless the examiner finds it is necessary to make an informed decision. The VA examiner should review the claims folder and then address the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's obstructive sleep apnea had its onset during active service, which was from November 1986 to December 1989? The Veteran was diagnosed with sleep apnea in 2014 following a sleep study. (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's obstructive sleep apnea is related to his service-connected sinusitis with allergic rhinitis? (c) If the answer to (b) is no, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's obstructive sleep apnea is aggravated (permanently worsened beyond the natural progression of the disease) by his service-connected sinusitis with allergic rhinitis? (d) If the examiner finds that the service-connected sinusitis with allergic rhinitis aggravates sleep apnea, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for sleep apnea prior to aggravation. If the examiner is unable to establish a baseline for the gout prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. The examiner must provide all findings, along with a complete supporting rationale for any opinion rendered. Additionally, the examiner must specifically consider and comment upon all relevant evidence of record, including the December 2017 opinions by the Veteran's VA treating physician and the lay evidence of record regarding the Veteran's alleged symptoms of obstructive sleep apnea during active service. If any opinion cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. Thereafter, readjudicate the Veteran's claim of entitlement to service connection for obstructive sleep apnea. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. The Veteran 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 (2012). _________________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).