Citation Nr: A24029741 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 201212-131827 DATE: June 6, 2024 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected tinnitus, is remanded. Entitlement to service connection for atrial fibrillation (A. Fib.), to include as secondary to service-connected tinnitus, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected tinnitus, is remanded. REASONS FOR REMAND The appellant served on active duty for training in the New York State Army National Guard from May 1971 until his honorable discharge in September 1971. See Certificate of Release or Discharge from Active Duty, September 23, 1971. Subsequently, the Veteran served in the New York State Army National Guard and/or United States Army Reserve with periods of inactive duty for training and active duty for training until his retirement in August 2010. See Chronological Statement of Retirement Points, June 7, 2012. Procedural History This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2020 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration, the agency of original jurisdiction (AOJ), which denied service connection for OSA, A. Fib., and hypertension. The appellant's VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), was received by VA in December 2020. The appellant elected the Evidence Submission docket. Applicable Evidentiary Window In his December 2020 NOD, the appellant selected the Evidence Submission Docket. The Board may only consider the evidence of record before the AOJ at the time of its decision on the issues on appeal, as well as any evidence submitted by the appellant or his representative with the NOD or within 90 days following receipt of the NOD. 38 C.F.R. §§ 20.300(a), 303. If additional evidence was submitted between the dates of the AOJ decision and VA's receipt of the NOD, the Board will not consider it unless it is resubmitted during the 90 days following VA's receipt of the NOD. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023). If evidence was associated with the claims file during a period when additional evidence was not allowed, the Board has not considered it in this decision. 38 C.F.R. § 20.300. However, as a remand of these matters is warranted, any such evidence will be considered by the AOJ on remand. In the October 2020 rating decision on appeal, the AOJ characterized the claims as "a request to reopen a previous claim"; that characterization appears to be a scrivener's error. In June 2020, the appellant filed an initial claim for entitlement to service connection for sleep apnea, insomnia, atrial fibrillation, and hypertension, all secondary to tinnitus. See Application for Disability Compensation and Related Compensation Benefits, June 2, 2020. The appellant's insomnia claim is the subject of a separate appeal. Recharacterization of Issues on Appeal After the October 2020 rating decision, the appellant filed a Statement in Support of Claim, wherein he asserted that due to a miscommunication with his former representative, his claim for entitlement to service connection for OSA, A. Fib. and hypertension were all filed as secondary to his service-connected tinnitus; however, he was actually seeking entitlement to service connection for those conditions on a direct basis. See Statement in Support of Claim, January 12, 2021. In order to afford the appellant as much opportunity as possible to substantiate his claim, the claims will be recharacterized as: (1) claim for entitlement to service connection for sleep apnea, to include as secondary to service connected tinnitus, (2) claim for entitlement to service connection for atrial fibrillation, to include as secondary to service connected tinnitus, and (3) claim for entitlement to service connection for hypertension, to include as secondary to service connected tinnitus, as noted on the title page of this decision. See generally Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (the scope of the claim includes any disability that may reasonably be encompassed by the description of the claim, reported symptoms, and the other information of record.). Remand Entitlement to service connection for OSA, A. Fib., and hypertension are remanded for additional evidentiary development. An appellant's claims must be remanded to the AOJ to correct pre-decisional duty to assist errors, including when the AOJ fails to make reasonable efforts to obtain VA treatment records, relevant federal or private treatment records; fails to obtain a VA examination; or provides an inadequate VA examination or opinion.? 38?C.F.R. §?20.802(a). Remand is required to verify periods of service. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This includes making as many requests as are necessary to obtain relevant records from a federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the federal department or agency advises VA that the requested records do not exist, or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). In this matter, it is not clear that the record contains a complete and accurate determination regarding the appellant's ACDUTRA and INACDUTRA service. A December 2020 Deferred Rating Decision notes that the appellant's service in the Army between May 1971 and September 1971 is considered active service. See Deferred Rating Decision, December 5, 2020. No other periods of active duty are identified in the record. The appellant's Report of Separation and Record of Service shows 33 years of service in the Army National Guard. See Report of Separation & Record of Service, September 27, 2003. The appellant's retirement points history statement includes periods of ACDUTRA and INACDUTRA. See Chronological Statement of Retirement Points, June 7, 2012. These periods have not been verified. Accordingly, remand is required for outstanding Military Personnel Records (MPRs). Additionally, the appellant indicated that during his active service he sought treatment for his sleep apnea and that his hypertension was noted during basic training. See Statement in Support of Claim, January 12, 2021. Further, a Buddy Statement from Col. H.F., USAR, notes that the appellant sought treatment from him during periods of annual training from 1983-1987 and 2000-2003. See Buddy Statement July 10, 2012. The record does not appear to include service treatment records (STRs) related to any periods of active duty, including the incidents of treatment referenced by Col. H.F., and it does not appear from the record that such development has been undertaken by the AOJ. Accordingly, remand is required for outstanding STRs. Further, remand is required to provide an adequate examination. In Barr v. Nicholson, 21 Vet. App. 303, 311(2007), the U.S. Court of Appeals for Veterans Claims held that once VA undertakes the effort to provide an examination when developing a service-connection claim, VA must provide an adequate examination. Unfortunately, the October 2020 VA examinations afforded to the appellant fail to meet that standard. These medical opinions are inadequate for rating purposes since the clinician did not have the benefit of reviewing all of the appellant's service treatment records. Additionally, the opinions are premised on the assessment that the appellant's active duty ended in 1971, which as discussed previously, may not be correct. See Hypertension DBQ, October 14, 2020 ("he was diagnosed with hypertension many years after his discharge from active duty, in 1971"); see also Sleep Apnea DBQ, October 14, 2020 ("diagnosis: obstructive sleep apnea, 2018 (>40 years after active service)"). Accordingly, new examinations are warranted. Finally, it is acknowledged that the appellant contacted VA with a complaint regarding the VA Examinations he underwent for his OSA, A. Fib. and hypertension. See Report of General Information, September 24, 2020. The essence of the appellant's complaint is that the examiner advised him that he would not be eligible for any benefits because he served in the National Guard and Reserves and pre-determined the outcome of his examination due to the nature of his service. Id. On remand any examination must be before a different clinician that the one who conducted the October 2020 examinations. The matters are REMANDED for the following action: 1. Verify all periods of active duty, ACDUTRA, and INACDUTRA, through all appropriate sources. A retirement points summary is not enough, the specific dates must be verified, and records obtained. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the appellant and his representative. 2. Obtain all of the appellant's service treatment records for all periods of active duty, ACDUTRA, and INACDUTRA. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the appellant and his representative. 3. Once the foregoing development has been accomplished, schedule the appellant for a VA examination, with a clinician other than the clinician who conducted the October 14, 2020, VA examinations, to determine the nature and etiology of the appellant's OSA, A. Fib. and hypertension claims. For each condition the clinician is asked to opine as to whether it is likely (an approximate balance of negative and positive evidence) that the condition had its onset during a period of active service, ACDUTRA or INACDUTRA service and/or is otherwise etiologically related to his service. The?mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. However, it is permissible to consider this as one factor in the determination regarding the origins of the claimed disability, providing there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstance presented.?? All opinions?must be supported by a clear rationale. The clinician is asked?to explain in detail the underlying reasoning?for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate.? If any requested opinion cannot be provided without resorting to mere speculation, the clinician must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer Sullivan-Brief, 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.