Citation Nr: 1317074 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-28 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 50 percent for depression and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for sleep apnea, claimed as secondary to service-connected depression and PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from September 1986 to June 1997. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran provided testimony at a March 2013 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board notes that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU) is generally considered part and parcel of an increased rating claim, where, as here, there are indications that unemployability may be related to service-connected disability for which a Veteran seeks an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board further notes that the RO denied the Veteran's claim for a TDIU in April 2010, and that the Veteran has not appealed that issue. It is therefore not a matter within the Board's jurisdiction. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his sleep apnea, diagnosed by VA treatment providers in December 2007 at a sleep study and pulmonary consult, is caused or chronically worsened by his service-connected depression and PTSD. In March 2013 he submitted an article from an unknown source, but the article is indicated in its text to have been reviewed by a physician and associate professor at the University of California, San Francisco, and to contain information from a medical study presented at a conference. That article indicates that sleep apnea is elevated in Veterans with PTSD. Because there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," but there is "insufficient competent medical evidence on file for the Secretary to make a decision on the claim," a VA examination and opinion as to whether the Veteran's sleep apnea is caused or aggravated by service-connected depression and PTSD is required in adjudicating the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4)(i), 3.310. The requirement under the VCAA for warranting a VA examination, that the evidence "indicates" that the veteran's disability "may" be associated with the veteran's service, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has not had a VA psychiatric examination since July 2010. He has described significant symptoms since that time, including private emergency room treatment in late 2011 and follow-up treatment at VA for what appears may have included a suicide attempt. Therefore, the Veteran should be afforded a new VA examination to assess the current severity of his depressions and PTSD. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. The most recent records of VA psychiatric treatment associated with the claims file are from July 2010. At his March 2013 Board hearing, the Veteran described ongoing VA treatment for psychiatric disability. The VA records of treatment from July 2010 forward should be sought. Also, as VA records of treatment from September 2006 to April 2007, not currently associated with the claims file, may contain information as to whether the Veteran's service-connected psychiatric disability worsened during the one-year period prior to his March 2008 claim for an increased rating, see 38 C.F.R. 3.400(o)(2) (effective dates-increased ratings), those VA records of treatment should be obtained also. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that relevant VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated him for psychiatric disability or for sleep apnea for the period from September 2006 forward but that may not have been previously associated with the claims file. After obtaining any appropriate authorizations for release of medical information, the RO/AMC should seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. The records sought should include any potentially relevant records of VA treatment from September 2006 to March 2007 and from July 2010 forward. The records sought should also include any potentially records of private treatment, to include records of psychiatric treatment at Legacy Health from January 2011 forward. The Veteran discussed some of these incidents of treatment at his March 2013 Board hearing and has submitted excerpts of records of mental health treatment from this provider for this period. The Veteran should also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. Once all available relevant medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded an examination for the purpose of determining the current severity of his service-connected depression and PTSD. The RO/AMC should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed. The examiner should take a history from the Veteran as to the nature and severity of his symptoms of depression and PTSD. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this, with a fully reasoned explanation. The examiner should provide the results of psychiatric examination of the Veteran. The examiner should provide a Global Assessment of Functioning (GAF) score, with a fully reasoned explanation for the score assigned. In all conclusions, the examiner should identify and explain the medical basis or bases, with identification of the relevant evidence of record. The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on established medical principles and his or her clinical experience and medical expertise. 3. Once all available relevant medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded an examination for the purpose of determining whether his diagnosed sleep apnea is caused or chronically worsened by his depression and PTSD. The RO/AMC should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed. The records reviewed should include VA records of treatment for depression, PTSD and sleep apnea. The records reviewed should include an article associated with the claims file, submitted into evidence by the Veteran in March 2013. The article indicates in its text that it was reviewed by a physician and associate professor at the University of California, San Francisco, and contains information from a medical study presented at a conference. The article indicates that sleep apnea is elevated in Veterans with PTSD. The examiner should provide an opinion as to whether it is at least as likely as not (whether there is a 50 percent greater probability) that the Veteran's diagnosed sleep apnea is caused by his depression and PTSD. The examiner should provide an opinion as to whether it is at least as likely as not (whether there is a 50 percent greater probability) that the Veteran's diagnosed sleep apnea is CHRONICALLY WORSENED by his depression and PTSD. In all conclusions, the examiner should identify and explain the medical basis or bases, with identification of the relevant evidence of record. The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on established medical principles and his or her clinical experience and medical expertise. 4. Readjudicate the issues on appeal. If any benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These matters 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). _________________________________________________ H. N. SCHWARTZ 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).