Citation Nr: 1808184 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-04 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a disability manifested by stomach and/or abdominal pain. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from September to December 1979, and from September 1980 to September 2000. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating action issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. By this rating action, the RO, in part, determined that new and material evidence had not been received to reopen previously denied claims for service connection for a sleep disorder and a disability manifested by stomach pain. The Veteran appealed these determinations to the Board. Jurisdiction of the appeal resides with the RO in Atlanta, Georgia. In June 2015, the Veteran testified before the undersigned at a videoconference hearing conducted via the Atlanta, Georgia RO. A copy of the hearing transcript has been associated with the claims file. In October 2015, the Board reopened and remanded the previously denied claims for service connection for a sleep disorder and stomach pain and recharacterized the issues as service connection for sleep apnea and lower abdominal pain as stated by the Veteran in her January 2011 claim to reopen. The Board notes that throughout the appeal period, the Veteran has used the terms stomach pain and lower abdomen pain interchangeably as it relates to her claim. The Board acknowledges that the Veteran is not a medical doctor and may not know exactly where the pain is. Therefore, the issue has been restated above to include both stomach and abdominal pain. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on her part. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. Stomach and or abdominal pain The Veteran contends that she has had stomach and/or abdominal pain since service. Service treatment records (STRs) and post-military records show complaints of pain, with no firm diagnosis of a condition. Evidence in the claims file reflects that the Veteran was diagnosed with gallstones in September 2015. The Veteran was scheduled for a VA examination to ascertain whether she had a current lower abdominal condition that was related to service. A March 2016 VA gallbladder and pancreas examination report reflects that the examiner stated there is no current disability manifested by lower abdominal pain and that the current disability is gallstones, which is manifested by right upper abdominal pain. The examiner noted the Veteran does not have a stomach condition, and that the Veteran's current symptoms are due to gallstones. The examiner opined that since there is no lower abdominal condition, it is less likely as not the current gallstones pain, in the right upper abdomen, is related to or had its onset in service. As noted previously, the Veteran has related her ongoing pain to her stomach and her abdomen. The Board acknowledges that the Veteran is not a physician and may not know where exactly the pain is emanating from. At the October 2015 GI specialist appointment, the Veteran provided a history of occasional nausea and occasional pain in the right side of the abdomen. So while the VA examiner was asked to provide an opinion on whether the Veteran has a lower abdomen condition specifically, based on the circumstances, the Board finds that to be an unnecessarily narrow question. In order to afford the Veteran the benefit of the doubt, the Board finds that an addendum opinion is required to determine whether it is at least as likely as not that the current gallstones disability, and resulting upper abdominal pain is etiologically related to the stomach and/or abdominal pain the Veteran had in service, regardless of whether the Veteran considered the pain to be stomach pain or upper or lower abdominal pain. Sleep apnea At the June 2015 Board hearing, the Veteran testified that during service she was told, by her now ex-husband, that she snored and had short periods where she stopped breathing while sleeping. She also stated that she was also told this by her daughter and her sister. A March 2016 VA examiner opined that it is less likely as not the Veteran's sleep apnea, diagnosed 16 years after service, is etiologically related to, or had its onset during service. The rationale provided was that although the Veteran's STR's and lay statements discuss sleep problems, sleep apnea is a condition with specific established diagnostic criteria and is not diagnosed by the "simple" complaint of sleeping problems, which could mean anything from difficulty falling asleep to not sleeping well at night. Lastly, the examiner stated there was no event or exposure in the military that causes sleep apnea. Unfortunately, the Board finds the VA examiner's opinion and rationale to be inadequate for rating purposes. The examiner's rationale does not take into account the Veteran's reports of breathing cessation during sleep, which is more than the "simple" sleeping problems of wakefulness and frequent trouble sleeping the examiner referred to. Additionally, service connection does not require that an event or exposure in service have caused sleep apnea. The onset of the condition in service is also a factor that can lead to service connection for a disability. Accordingly, the Board finds that the March 2016 VA opinion, with regard to the Veteran's claim for service connection for sleep apnea, is inadequate for evaluation purposes. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that a remand for an addendum opinion that takes into account the lay testimony regarding all of the Veteran's sleep apnea symptoms, is necessary. 38 C.F.R. § 4.2 (2017). Due Process Following the issuance of the June 2016 supplemental statement of the case, the Veteran's representative, Georgia Department of Veterans Services, is not shown to have been afforded the opportunity to submit argument in support of the Veteran's claims via a VA Form 646, Statement of Representative in Appeals Case, or its equivalent. In order to afford the Veteran due process, this should be accomplished prior to returning the case to the Board. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file any outstanding treatment records pertinent to the claims on appeal. 2. Following completion of the above, return the claims file to the VA examiner who conducted the March 2016 VA examinations of the Veteran. The claims file, to include a copy of this Remand, must be made available to and pertinent documents therein reviewed by the examiner. If the March 2016 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinions. The Veteran may be called in for examination, if deemed warranted. In an addendum opinion, the examiner should provide an opinion on the following: a) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed gallstone disability is of service onset, otherwise related to or caused by her active duty service, to include the Veteran's reports of symptoms of stomach and abdominal pain during and since service, and the Veteran's reported history of occasional nausea and occasional pain in the right side of the abdomen. b) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed sleep apnea is of service onset or otherwise related thereto or caused by her active duty service, to include the Veteran's reports of symptoms of sleep apnea, such as breathing cessation while sleeping, as reported to her by her ex-husband, daughter, and sister. The examiner should also provide a complete rationale for all opinions expressed and conclusions reached. If the examiner is unable to answer the questions posed without resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. The AOJ should review the medical opinions obtained above to ensure that the remand directives have been accomplished. If the question posed is not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 4. Thereafter, the AOJ should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, she and her representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered, and they should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review, if in order. The record must reflect that the Veteran's representative was afforded the opportunity to respond to the SSOC, whether through the submission of VA Form 646 , Statement of Representative in Appeals Case, or its equivalent. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ BARBARA B. COPELAND 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).