Citation Nr: 1414935 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 09-11 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for sleep apnea as secondary to service-connected major depression, including medications used to treat depression. ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had reserve service in the Marine Corps from December 1986 to May 1987 and November 1990 to May 1991, with various periods of active duty for training (ACDUTRA). The Veteran had service in the Southwest Asian Theater of operations from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Reno, Nevada. The Board previously adjudicated the Veteran's claim in May 2010 and denied service connection for sleep apnea as secondary to service-connected major depression. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In January 2012, the Court vacated the Board's May 2010 decision pursuant to a Joint Motion for Remand. In May 2012, pursuant to the Joint Motion for Remand, the Board requested an opinion from the Veteran's Health Administration (VHA) regarding medical questions presented in this case. A June 2012 VHA opinion was received by the Board, and a copy of that decision was provided to the Veteran. The Board readjudicated the Veteran's claim in November 2012 and again denied service connection for sleep apnea as secondary to service-connected major depression. In September 2013, the Court vacated the Board's November 2012 decision pursuant to a Joint Motion for Remand. The parties to the Joint Motion for Remand requested that the Court vacate the Board's decision that denied service connection for sleep apnea as secondary to service-connected major depression, including medications used to treat depression, on the basis that the June 2012 VHA opinion, relied on by the Board, was inadequate. The parties to the Joint Motion for Remand noted that the June 2012 VHA examiner opined that the Veteran's sleep apnea was not caused or worsened by medications used to treat his depression, but did not address whether the psychiatric medications used to treat the Veteran's depression interfered with the Veteran's sleep patterns and whether this aspect of his medication use impacted his sleep apnea. The Joint Motion for Remand instructed the Board to obtain a medical opinion that discusses whether psychiatric medications aggravate the sleep apnea due to interference with the Veteran's sleep patterns. In March 2014 written correspondence, the Veteran specifically requested that the claim be remanded to the agency of original jurisdiction (AOJ) for consideration of any new evidence in the first instance. 38 C.F.R. § 20.1304(c) (2013). As the Veteran's claim is being remanded below, the AOJ will have an opportunity to review the newly obtained evidence in the first instance. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In a May 2012 VHA medical opinion request, the Board asked a neurologist or sleep medicine specialist to opine whether it is at least as likely as not that the Veteran's sleep apnea was either caused by or permanently worsened in severity (aggravation) by the medications taken to treat the service-connected depression. In a June 2012 VHA opinion, the VHA examiner opined that it is less likely than not that the Veteran's sleep apnea was caused by or aggravated by medications taken to treat depression. The VHA examiner reasoned that, although some medication used to treat depression may cause weight gain as a common side effect, according to the medical literature, weight gain is not a common side effect for the medications taken by the Veteran (Effexor, Trazadone, Paxil, Zoloft, Xanax). The VHA examiner further reasoned that the weight gain that can occur with the medications taken by the Veteran is typically quite modest and not enough to cause someone to develop sleep disorder breathing. The VHA examiner also examined the claims file and opined that the available treatment records did not support an actual correlation between weight gain and periods of antidepressant medication usage. The September 2013 Joint Motion for Remand specifically agreed that the June 2012 VHA opinion was inadequate because it did not discuss whether the Veteran's psychiatric medications aggravate his sleep apnea due to interference with his sleep patterns. The Joint Motion for Remand noted that the VHA examiner did not address whether the psychiatric medications used to treat the Veteran's depression interfered with the Veteran's sleep patterns and whether this aspect of his medication use impacted the sleep apnea. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Upon remand, the Veteran should be provided with a new VA examination that should specifically address whether the Veteran's psychiatric medications aggravate his sleep apnea due to interference with his sleep patterns. Additionally, no VA treatment records dated after September 2009 have been associated with the claims file. The RO/AMC should also obtain and associate any additional, pertinent VA treatment records related to treatment for sleep apnea. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain and associate with the record all VA treatment records pertaining to treatment for sleep apnea not already of record. 2. Schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of the currently diagnosed sleep apnea as secondary to the service-connected major depression, including medications used to treat depression. The claims folder should be made available to the examiner and the VA examiner should review the evidence associated with the record. The VA examiner should offer the following opinions with a clear rationale and basis for all opinions expressed: Is it as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed sleep apnea was caused by the service-connected major depression? Is it as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed sleep apnea was aggravated (permanently worsened in severity beyond a natural progression) by the service-connected major depression, to include whether the psychiatric medications taken by the Veteran aggravate his sleep apnea due to interference with his sleep patterns? The impact, if any, of the psychiatric medications on the Veteran's sleep should be noted. The VA examiner should specifically address whether the psychiatric mediations used to treat the Veteran's depression interfere with the Veteran's sleep patterns and whether this aspect of his medication use impacts his sleep apnea. 2. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2013).