Citation Nr: 20028131 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 15-23 115A DATE: April 22, 2020 REMANDED Entitlement to service connection for sleep apnea, to include as due to the Veteran’s service-connected gastroesophageal reflux disease (GERD) with esophageal stricture and Barrett’s esophagus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1972 to August 1976 with additional Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded this matter to the RO for further development. Entitlement to service connection for sleep apnea, to include as due to the Veteran’s service-connected GERD with esophageal stricture and Barrett’s esophagus Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. First, the Board notes that there may be outstanding VA and private treatment records. In this regard, the August 2019 VA examiner noted that the Veteran appeared to have been previously diagnosed with sleep apnea from two sleep studies (one private and one by VA) that were not of record and, thus, unavailable to review. Upon careful review of the record, the Veteran’s claims file does not contain any sleep studies. As the August 2019 VA examiner and additional VA treatment notes of record reflect the Veteran underwent a sleep study through VA, a remand is warranted to attempt to obtain any outstanding sleep studies. See January 2012 VA treatment note. Additionally, a December 2011 VA general medical pension examination reflects the Veteran reported a sleep apnea diagnosis in 1985 and that he underwent a sleep study by an outside facility. On remand, the Veteran should also be provided another opportunity to identify any private treatment records and sleep studies related to his claim so that the RO may attempt to obtain such records. Next, the Board notes that although the August 2019 VA examiner discussed the buddy statements of record indicating the Veteran showed symptoms of sleep apnea in service, namely through excessive snoring, as well as the possibility that his weight gain after service could contribute to his current condition, the examiner did not actually render an opinion on the Veteran’s claimed condition. Instead of providing an opinion, the examiner merely asserted that it cannot be determined if any sleep apnea was incurred in or caused by any claimed sleep disorder during service. Moreover, the Veteran has raised the issue of entitlement to service connection for sleep apnea as secondary to his service-connected GERD with esophageal stricture and Barrett’s esophagus. Specifically, the Veteran asserted that his GERD interferes with his ability to wear his continuous airway pressure (CPAP) machine, which aggravates his sleep apnea. See September 2017 Correspondence. However, the August 2019 opinion and the only medical opinion of record, does not address the Veteran’s secondary service connection claim. As such, this matter should be remanded so that a VA medical opinion may be obtained to address whether the Veteran’s sleep apnea is proximately due to or aggravated by his service-connected GERD with esophageal stricture and Barrett’s esophagus. Finally, the Board notes that in March 2013 correspondence, the Veteran informed VA that he was receiving Social Security Administration (SSA) disability benefits. See March 2013 Statement in Support of Claim. The Veteran’s claims file does not contain any SSA medical records. As the SSA records could be relevant to the Veteran’s claim, the Agency of Original Jurisdiction (AOJ) should attempt to obtain these records on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any records in possession of the SSA that are pertinent to the Veteran’s award of disability benefits. Make a notation in the claims file of all attempts to obtain these records and all responses received. 2. Obtain any outstanding VA treatment records and associate those documents with the claims file. Specifically, attempt to obtain any VA sleep study reports. A May 2013 VA psychology treatment note indicates the Veteran underwent a sleep study at Pensacola VA on September 11, 2012. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file. 3. Ask the Veteran to identify any private treatment that he may have had for his sleep apnea claim, which is not already of record, to particularly include any sleep study reports. The Board notes that a July 2017 VA treatment note reflects that the Veteran reported a sleep study conducted in 1985 in San Antonio Texas, a January 2012 VA treatment note reflects the Veteran reported being diagnosed with sleep apnea in Easton Texas in 1985, and a June 1996 private treatment record from what appears   4. to be from either Health First Medical Associates in Arlington Texas or from South Arlington Primary Care Associates reflects a sleep study consult. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file. 5. Then, obtain an addendum medical opinion to address the nature and origin of the Veteran’s sleep apnea. The decision for an in-person examination is left to the discretion of the examiner and if an in-person examination is not conducted, the examiner should explain why such an examination is unnecessary. The claims file, to include a copy of this remand, should be made available to and be reviewed by the examiner. The examiner should address the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea had its onset in service or is otherwise related to active service, to include the competent reports of his frequent and severe snoring in service? In providing this opinion, the examiner must address the buddy statements of record indicating the Veteran had severe and frequent snoring in service and the Veteran’s reports of in-service symptoms of sleep apnea, to include snoring, fatigue, and excessive daytime sleepiness. See January 2016 and December 2018 Buddy Statements; September 2016 Form 9.   The examiner should also consider the articles the Veteran submitted in support of his claim and how they relate to his claim. In this regard, the Veteran submitted an article from the National Heart, Lung, and Blood Institute entitled What Are the Signs and Symptoms of Sleep Apnea? and a research abstract entitled Delayed Diagnosis of Obstructive Sleep Apnea: Don’t Ask, Don’t Tell. See January 2016 Correspondence. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was caused OR aggravated by his service-connected GERD with esophageal stricture and Barrett’s esophagus? If aggravation is found, the examiner should quantify the degree of aggravation, if possible. State whether there was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described, to the extent possible, in terms of diagnosis, severity, and duration. In providing this opinion, the examiner must address the July 2017 VA treatment note reflecting the Veteran’s reports that his GERD causes him to aspirate at night, which prevents him from wearing his CPAP machine. The examiner should also consider the articles the Veteran submitted in support of his claim entitled Barrett’s esophagus and the risk of obstructive sleep apnea: a case-control study and The prevalence of obstructive sleep apnea characteristics in patients with Barrett’s esophagus and how the articles relate to the Veteran’s claim. See September 2017 Correspondence.   The examiner should comment on all questions above and set forth a complete rationale for all opinions. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical finding and must reflect consideration of the lay assertions of pertinent symptomology. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.