Citation Nr: 1237885 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 09-29 251 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for obstructive sleep apnea, claimed as secondary to the service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from October 1960 to January 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Winston-Salem RO. In May 2011, the Board remanded the matter for additional development. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in his claims file. The issue of entitlement a specially adapted housing grant has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional action is necessary before the Board may consider the merits of the claim. The May 2011 remand noted that Dr. H. J. provided an opinion in support of the Veteran's claim in that it linked sleep apnea to the service-connected PTSD. The physician indicated that documents were sent with the statement that supported his opinion; however, the additional documents were not included. The Board directed the RO to contact the physician and specifically ask him to provide the "accompanying documents" that were referenced in the September 2008 statement. The Board finds that the letter sent to the physician was not in accordance with the remand instruction. The March 2012 correspondence sent to the physician shows that he was only asked to send copies of all treatment records for the Veteran; there is no mention of the "accompanying documents" referenced in his letter or of the September 2008 letter itself. In the September 2008 letter, the physician did not identify the type of documents that were included; therefore, it cannot be assumed that the documents were treatment records only. Since the physician could have been referring to a treatise, research studies, or any other document not involving the Veteran's treatment, the wording of the request is critical to ensuring the proper documents are requested. Consequently, the letter sent to the physician is inadequate. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the Veteran sent in additional evidence in the form of a June 2010 article that discusses the higher incident of sleep apnea among veterans. The article also states that sleep apnea is linked to other problems such as heart disease. During the course of the appeal, the RO granted service connection for coronary artery disease in a November 2011 rating decision. Given the association between heart disease and sleep apnea noted in the article, this theory of entitlement must be addressed by an appropriate medical professional. A VA examination was conducted in March 2010 that addressed secondary service connection with respect to PTSD. Notably, there are two components to secondary service connection that must be addressed, one involves causation and the other involves aggravation. Since the VA examiner only addressed causation, an opinion regarding aggravation is also needed. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must contact Dr. H. J. and ASK HIM TO PROVIDE THE ACCOMPANYING DOCUMENTS THAT HE REFERENCED IN HIS SEPTEMBER 2008 LETTER regarding the relationship between the Veteran's PTSD and sleep apnea. If additional medical authorization is needed to obtain this information, it must be requested from the Veteran. 2. After receiving the additional documents from Dr. H. J., or after reasonable efforts are made to obtain the documents with no response, arrange for a VA examination with an appropriate physician for the purpose of obtaining an opinion as to the etiology of the Veteran's sleep apnea. The following considerations will govern the examination: a) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand. b) The examiner must respond to the following questions: * Is the Veteran's obstructive sleep apnea caused or aggravated (chronically worsened) by his service-connected coronary artery disease? * Is the Veteran's obstructive sleep apnea aggravated (chronically worsened) by his service-connected PTSD? c) Although the examiner is expected to review the claims file in its entirety, his or her attention is called to the following: * The June 2010 article that indicates sleep apnea is linked to heart disease. * The September 2008 letter from Dr. H. J. and any documents he may have submitted as a result of this remand to support his opinion. d) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. e) The examiner will provide a FULLY REASONED EXPLANATION for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran a supplemental statement of the case and an appropriate period of time for response. The appellant 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. 2012). _________________________________________________ VITO A. CLEMENTI 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) (2012).