Citation Nr: 21041854 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-50 463 DATE: July 10, 2021 REMANDED Entitlement to service connection for cerebellar ataxia is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for kidney stones is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1970 to March 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran and his spouse testified at a hearing before the undersigned and identified relevant outstanding treatment records that must be sought before adjudication may proceed. 1. Entitlement to service connection for cerebellar ataxia is remanded. 2. Entitlement to service connection for prostate cancer is remanded. 3. Entitlement to service connection for kidney stones is remanded. 4. Entitlement to service connection for GERD is remanded. 5. Entitlement to service connection for hypertension is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. During the August 2020 hearing, the Veteran (and his spouse) reported that he has continued to receive VA treatment for the disabilities on appeal, and particularly described a November 2018 statement by Dr. W, a neurologist working with VA. This document is not associated with the Veteran's claims file, which currently does not include VA treatment records beyond November 2016. To this end, the Board acknowledges the statement by the Veteran's spouse that all of the relevant medical records are viewable online by the Veteran through VA's electronic medical records system. However, because health records are protected information, these records, although viewable by the Veteran, are not automatically uploaded or otherwise shared in the evidentiary record that is viewable by the Board for this appeal. However, any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal, so must be sought to assist the Veteran in substantiating his claim for benefits. Although the additional delay is regrettable, a remand is required to allow VA to obtain the described records and associate them with the claims file. 6. Entitlement to service connection for obstructive sleep apnea is remanded. While the duty to assist in obtaining the treatment records discussed above also pertains to the claim of service connection for sleep apnea, this claim has an additional requirement because the duty to assist in obtaining a medical opinion has been triggered by other evidence within the claims file. The Board cannot make a fully-informed decision on the issue of service connection for sleep apnea because no VA examiner has opined whether the Veteran's currently diagnosed obstructive sleep apnea is related to a report that the Veteran experienced morning headaches during his active military service, a fact found to be of importance to this matter by one of the Veteran's physicians. See Medical opinion, May 2017. Of note, this opinion, although it establishes a possible connection, is not adequate evidence upon which a claim may be granted because it does not describe the likelihood of the identified possibility. Under the laws and regulations governing VA, that possibility must be "at least as likely as not" which means a 50 percent likelihood or greater. Nonetheless, this doctor's opinion is evidence that triggers a duty to assist the Veteran in obtaining an adequate medical opinion on the matter because it provides an indication of a possible association with service. Where there is competent evidence of a current disability or persistent or recurrent symptoms of a disability, evidence establishing that an event, injury, or disease occurred in service, and an indication that the disability or persistent symptoms of a disability may be associated with service or another service-connected disability, but there is insufficient competent medical evidence to make a decision on the claim, the Veteran must be afforded a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 2016 to the present. Ensure the records obtained include evidence from Dr. W, the Veteran's neurologist, as described in the August 2020 hearing testimony. 2. Schedule the Veteran for a VA examination for his sleep apnea. The examiner must review the claims file. The examiner is then asked to provide a response to the following: Is this Veteran's sleep apnea at least as likely as not related to his service, including the report that he experienced morning headaches during active service (as described in a May 2017 statement by Dr. CG)? Provide a rationale to support the opinion offered. Please note that the statement by Dr. CG also indicates that the Veteran was diagnosed with sleep apnea "shortly after he was discharged from the military." However, the basis for this finding is unclear from the record. Instead, it appears that the Veteran was diagnosed with OSA in or around Summer 2014, more than 40 years after his discharge from military service. See, e.g., VA treatment record, December 22, 2015. Any medical history obtainable from the Veteran that clarifies this discrepancy would be useful and appreciated by the Board. Also, in providing the requested opinion, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The Board recognizes that the complex and retrospective nature of the medical question involved here will require significant work on the part of the medical examiner. Full and thoroughly explained answers to each of the questions will prevent delays in adjudication and are very much appreciated. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.