Citation Nr: 1808660 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-48 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a sleep disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran had active service from June 1980 to September 1980, from June 1983 to July 1984, and from February 2003 to February 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction has since been transferred to the RO in Columbia, South Carolina. The issue has been recharacterized to comport with the evidence of record. Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). In September 2014, September 2016, and June 2017, the Board remanded the case for further development. Since the requested development has not been completed, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). Although the Veteran requested a hearing before the Board in the filing of his substantive appeal, he withdrew that request in an October 2011 statement. As there have been no further requests for a hearing, the Board deems the hearing request to be withdrawn. See 38 C.F.R. § 20.704(c) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the issue on appeal. Previously, the Board remanded the issue of entitlement to service connection for sleep apnea in September 2016 for an addendum VA opinion as the September 2014 VA examination was found to be inadequate. In response to questions presented to the VA examiner in the remand directives provided, a VA opinion was obtained in October 2016. Essentially, the examiner opined that the Veteran's sleep apnea was due to a congenital defect which was not aggravated as it was repaired. The examiner also opined that the Veteran's current sleep apnea was not due to his service. In the rationale, the examiner stated that the Veteran currently has borderline sleep apnea, which was diagnosed 8 years after his service, or in 2012. It appears that this is a new diagnosis that the examiner distinguished from the 2006 diagnosis. The examiner explained that given that a major risk factor is increasing age, and that the Veteran had only a slight increase in Apnea-Hypopnea Index (AHI), his current obstructive sleep apnea (OSA) was likely due to collapse of the throat muscles during sleep and not related to his previous obstruction due to enlarged tonsils. The examiner noted that the Veteran was diagnosed with severe sleep apnea in 2006 with AHI of 86. The Veteran was noted to have tonsillar hypertrophy on his enlistment, which is a congenital defect that can cause OSA in children, and occasionally in adults, and tonsillectomy is a treatment option. Given the severity upon diagnosis and the significant improvement after tonsillectomy, it was likely the Veteran's tonsillar hypertrophy caused obstruction which resulted in the positive sleep study. The examiner stated that his sleep apnea was not due to the dust he encountered while on active duty. Also, the sleep problems described did not suggest sleep apnea and he was unable to find signs or symptoms pathognomonic for OSA in the service treatment records. Given the severity of obstruction in 2006 and his OSA, it had likely been present for some time, and given the short periods of time of active duty it was impossible to say without speculation that his sleep apnea was incurred during a period of active duty in the military service. Given the documented throat obstruction he had at the time, it was unlikely that it was aggravated by his service, to include the dust storms. The Board finds that clarification of the VA opinion is needed regarding several statements the examiner provided. The examiner opined that the congenital defect that caused the Veteran's sleep apnea was not aggravated as it was repaired; however, the repair was performed in 2006, after the Veteran's periods of active service, and there was no explanation as to how the repair explained the finding that the condition was not aggravated. The examiner also stated that given the documented throat obstruction he had at the time, it was unlikely that it was aggravated by his service, to include the dust storms. No rationale was provided for this finding. The examiner did not provide an opinion supported by adequate rationale regarding whether the congenital defect was aggravated during service because of a superimposed disease or injury, including the inservice exposure to dust storms. Also, the examiner opined that the current sleep apnea was not due to his service, then later stated that given the short periods of time of active duty it was impossible to say without speculation that his sleep apnea was incurred during a period of active duty in the military service. The Board finds the opinions regarding the Veteran's current diagnosis confusing as the examiner provided a definitive opinion without rationale then stated that an opinion could not be provided without speculation and failed to provide an adequate explanation. Finally, it appears that the examiner may have found that the Veteran had a new diagnosis for sleep apnea that was distinct from the 2006 diagnosis. Indeed, he noted a diagnosis of sleep apnea 8 years post service, or in 2012. However, no opinion was provided as to whether these two diagnoses are in any way related. In order to properly adjudicate this appeal, a fully articulated and soundly reasoned medical opinion that accounts for the Veteran's competent lay testimony is needed. As such, another VA examination must be afforded to the Veteran. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum VA opinion from a VA examiner who has not previously provided an opinion in this case. Another examination need not be obtained unless the examiner finds one necessary. The claim file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Specifically, the examiner is asked to provide an opinion that addresses the following questions: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran suffered from additional disability due to aggravation of the congenital defect of tonsillar hypertrophy noted on enlistment during service because of a superimposed disease or injury, including inservice dust storms? (b) If yes, is it at least as likely as not (a 50 percent or greater probability) that any previously or currently diagnosed sleep disorder is related to the congenital defect? (c) Is it at least as likely as not (a probability of 50 percent or more) that any previously or currently diagnosed sleep disorder was incurred in, caused by, or etiologically related to the Veteran's active duty service, including in-service complaints of fatigue and dust storms? In responding to the questions above, the examiner must clarify if the Veteran's currently diagnosed sleep apnea is distinct from the sleep apnea caused by his congenital tonsillar hypertrophy and clearly address any previously or currently diagnosed sleep disorder diagnosis in the requested opinions above. The examiner must also provide an explanation that takes into account all lay and medical evidence, including the Veteran's assertions that he was fatigued and tired during service and that exposure to severe and frequent dust storms during his service at Fort Bliss caused his sleep apnea, and the article provided by the Veteran in April 2016 concerning the dust storms and health impacts in the New Mexico region at the time of his service. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 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). _________________________________________________ E.I. VELEZ 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).