The issue of entitlement to service connection for sleep apnea, to include as secondary to service-connected traumatic brain injury residuals and tinnitus, is remanded.
Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels.
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Citation Nr: 20006226 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 16-30 928 DATE: January 24, 2020 REMANDED The issue of entitlement to service connection for sleep apnea, to include as secondary to service-connected traumatic brain injury residuals and tinnitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1982 to March 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2019. Entitlement to service connection for sleep apnea, to include as secondary to service-connected traumatic brain injury residuals and tinnitus, is remanded. The Veteran seeks service connection for sleep apnea. Specifically, the Veteran contends that he has sleep apnea secondary to service-connected traumatic brain injury residuals and/or service-connected tinnitus. In this regard, the Board notes that the Veteran is service-connected for both traumatic brain injury residuals and tinnitus and he has a current diagnosis of obstructive sleep apnea. See September 2014 Long Beach VAMC Records. Given that the evidence suggests that the Veteran's current sleep apnea diagnosis may be related to his active service, the Board finds that remand is necessary to obtain a secondary opinion. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board acknowledges that the evidence of record includes April 2016 and October 2019 medical opinions from Dr. Craig N. Bash (Dr. Bash) stating that the Veteran’s sleep apnea is secondary to his service-connected traumatic brain injury residuals and a July 2015 medical opinion from Lee Petrarca N.P. (LP) stating that the Veteran’s sleep apnea is secondary to his service-connected tinnitus. However, the Board finds these opinions inadequate to decide the Veteran’s claim for service connection for sleep apnea. Specifically, LP’s opinion did not include an adequate rationale and while Dr. Bash’s opinion listed treatise evidence, the evidence was general in nature and did not include an adequate rationale relating the treatise evidence to this specific Veteran. Therefore, the Board finds that a remand is necessary to obtain a secondary opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). The Veteran’s relevant ongoing medical records should also be requested on remand. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. The Board is particularly interested in the Veteran’s VA Decatur and Atlanta records. 2. Schedule the Veteran for a VA examination with an appropriate clinician, if possible, a neurologist, to determine the nature, etiology, and date of onset of the Veteran's sleep apnea. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, if necessary, the examiner should respond to the following: (a.) Is it at least as likely as not that the diagnosed sleep apnea was caused or aggravated (worsened beyond normal progression) by the Veteran's service-connected traumatic brain injury residuals? The examiner is asked to address both causation and aggravation. The examiner is asked to specifically discuss whether brain dysfunction related to his service-connected traumatic brain injury residuals caused or worsened his sleep apnea. The examiner is also asked to specifically discuss the Veteran’s lay statements and the April 2016 and October 2019 positive nexus opinions from Dr. Craig M. Bash. If the examiner disagrees with either, he or she should fully explain why. (b.) If the examiner finds that the Veteran's sleep apnea has been worsened beyond normal progression (aggravated) by the Veteran's service-connected traumatic brain injury residuals, the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to the service-connected disability. (c.) Is it at least as likely as not that the diagnosed sleep apnea was caused or aggravated (worsened beyond normal progression) by the Veteran's service-connected tinnitus? The examiner is asked to address both causation and aggravation. The examiner is asked to specifically discuss the Veteran’s lay statements and the July 2015 positive nexus opinion from Lee Petrarca N.P. If the examiner disagrees with this opinion, he or she should fully explain why. (d.) If the examiner finds that the Veteran's sleep apnea has been worsened beyond normal progression (aggravated) by the Veteran's service-connected tinnitus, the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to the service-connected disability. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.