Citation Nr: 1808188 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-34 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an initial compensable rating for nocturnal enuresis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1970 to July 1976, from January 2004 to February 2005, from February 2006 to June 2006, and from February 2007 to October 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2010 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran was scheduled for a hearing before a Veterans Law Judge in April 2015. He withdrew his hearing request in June 2015. The Board remanded this case for additional development in August 2016. That development has now been completed. The issue of an increased rating for nocturnal enuresis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's sleep apnea had onset during a period of active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5103 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303 (2017). Service treatment records are silent for symptoms or diagnosis of sleep apnea. In September 2008, the Veteran underwent a sleep study for apnea screening. Private treatment records from that time note a diagnosis of sleep apnea. A June 2011 private treatment record notes that the Veteran's sleep apnea is manifested by loud snoring, nocturnal oxygen desaturation, and abnormal sleep architecture. In August 2011, the Veteran's roommate during his Kuwait deployment submitted a statement. See Buddy Statement of R.H; see also February 2015 Buddy Statement of R.H. The Veteran's roommate observed that the Veteran snored loudly and would occasionally stop breathing in his sleep. He also observed that the Veteran exhibited daytime sleepiness and fatigue. The Veteran's wife submitted a September 2012 statement corroborating that the Veteran snored and would stop breathing in his sleep. In August 2016, the Board remanded the claim for an examination and opinion. The remand directed consideration of the lay statements of the Veteran, his spouse, and R.H. and to determine whether they were sufficient to show onset of sleep apnea in service. Pursuant to the Board's remand, the Veteran underwent an examination in September 2016. The examiner reviewed the record and conducted an in-person examination. The Veteran reported that he has been snoring for a while. The examiner noted, among others, the September 2012 statement of the Veteran's wife and the September 2008 private treatment record noting trial for CPAP. However, the examiner did not note consideration of the statement of R.H. The examiner opined that the condition is less likely than not incurred in or caused by service. The examiner reasoned that service treatment records are silent for sleep apnea or residuals from sleep apnea. An addendum opinion was obtained from the same examiner in October 2016. The examiner indicated review of the statement of the Veteran's roommate and fellow service member. The examiner also accepted the statements of R.H., the Veteran's wife, and the Veteran. The examiner concluded that the lay evidence, with the other evidence of record, would be sufficient to show onset of sleep apnea in service. The addendum opinion is favorable nexus evidence. As the preponderance of the competent medical evidence and credible lay evidence supports the onset of sleep apnea during active service, service connection is warranted. ORDER Service connection for sleep apnea is granted. REMAND The Veteran seeks an increased rating for nocturnal enuresis. The Veteran has received private treatment for the disability since 2004. See November 2008 VA treatment records (noting treatment with an outside urologist since 2004); December 2011 correspondence from the Veteran (stating that he is prescribed medication by his private physician, Dr. Papp); and July 2013 VA treatment records noting that the Veteran was seen by private urologist and recently transferred care to VA). The evidence of record includes sparse records from the Veteran's private physician, Dr. Papp dated through October 2009 and an August 2016 record from OSH Urology, and Comprehensive Urology showing the Veteran as a new patient. In December 2011 the Veteran completed an authorization form to obtain records from Dr. Papp for treatment in August 2011. It appears that the claims file may not include all pertinent private treatment records. On remand, complete copies of records from Dr. Papp, as well as from OSH Urology, and Comprehensive Urology, should be obtained. Remand is required to obtain current VA treatment records and any outstanding private treatment. Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c) (2017). The claims file should then be returned to the VA examiner for an addendum opinion based on review of any additional pertinent evidence received. See Green v. Derwinski, 1 Vet. App. 121, 124(1991) (holding that the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (Vet. App. 2008). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify and provide authorization to obtain any pertinent medical treatment related to his nocturnal enuresis not previously identified. Obtain records for all providers identified and authorized, to include any non-duplicative medical records from Dr. Papp since 2004 and from OSH Urology, and Comprehensive Urology since 2016. Also, update the file with VA treatment records since December 2013. If VA or private records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran must be notified in accordance with 38 C.F.R. § 3.159 (e) (2017). 2. Return the claims file to the September 2016 examiner, or another qualified examiner, to determine the current nature and severity of the nocturnal enuresis. The claims file. All appropriate diagnostic testing must be conducted. If the examiner feels it is necessary, an in-person examination should be conducted. The examiner is asked to note all symptomatology associated with nocturnal enuresis including any voiding dysfunction, urinary frequency, obstructed voiding, or urinary tract infections. The examiner should specify frequency of symptoms, with and without the ameliorative effect of medication; and whether they require the wearing of absorbent material and how often they must be changed. A fully articulated medical rationale for all opinions expressed must be set forth in the examination report. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, this should be indicated in the report, along with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Thereafter, the Veteran's claim should be readjudicated. If the benefit sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto. 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). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs