Citation Nr: 1323743 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 07-24 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea including as secondary to service-connected esophageal spasms and gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to February 1968. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office that denied service connection for sleep apnea. The Veteran testified at a hearing before the Board sitting at the RO in January 2009. A transcript of the hearing is associated with the claims file. In correspondence in July 2012, the Board informed the Veteran that the Veterans Law Judge who presided at the hearing was no longer employed by the Board. The Veteran was afforded the opportunity for another hearing. No response was received. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that have been considered. 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 Veteran served as a U.S. Army air defense gunner, tracked vehicle driver, and tactical communications supervisor including combat service in the Republic of Vietnam from September 1965 to May 1966. The Veteran was awarded Purple Heart Medals for combat injuries. He contends that his obstructive sleep apnea is secondary to service-connected esophageal spasms and gastroesophageal reflux disease (GERD). In a June 2013 brief, the Veteran's representative contended that the development of the appeal was inadequate because secondary service connection based on the Veteran's service-connected posttraumatic stress disorder (PTSD) was not considered. The representative submitted a document that he contended was published by the National Institutes of Health for the proposition that sleep apnea may coexist and is either caused or aggravated by service-connected posttraumatic stress disorder. Disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012). Upon review, the article was published in the European Journal of Pyschotraumatology and is an abstract of a research dissertation. The author concludes in patients with PTSD, a correlation between the apnea index and PTSD was observed. The author suggests that disturbed sleep is a precipitating and perpetuating factor in PTSD symptomatology. The Board is obligated to consider all issues reasonably raised in an appeal. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) ("When reviewing [the appellant's] claim, the Board was obligated to consider all reasonably raised matters regarding the issue on appeal."); Brannon v. West, 12 Vet. App. 32, 35 (1998) (concluding that the Board must "adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal including all documents and oral testimony in the record prior to the Board's decision"). The Veteran was examined by a VA physician in June 2012 with opinions in addenda from the same physician in September 2011 and June 2012. The physician addressed the etiology of the Veteran's sleep apnea including causation or aggravation by residuals of shrapnel wounds to the neck, esophageal spasms, and gastroesophageal reflux disease (GERD). The physician provided clear explanation and rationale for the causes of the Veteran's sleep apnea but did not comment on causation or aggravation by PTSD. VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, there is competent medical evidence of current disability of obstructive sleep apnea and service-connected PTSD and the suggestion by the Veteran that there may be an association between the two disorders. As there is insufficient medical evidence in the file to make a decision, an additional medical review and opinion is necessary to decide the claim. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to submit additional evidence or argument in support of his claim. 2. Request all records of VA mental health care since July 2012 and associate any records received with the claims file. 3. Then, provide the claims file to the VA physician who performed an examination in June 2010 and provided additional opinions in 2011 and 2012 if the physician is available. If not, provide the claims file to another VA physician. If an examination of the Veteran is required by any examiner, make it so. Request that the examiner review the claims file including previous examinations and treatment for sleep apnea, for PTSD, and the dissertation abstract submitted by the Veteran's representative in June 2013, and note the review in an examination report. Request that the examiner provide an opinion whether the Veteran's obstructive sleep apnea is caused or aggravated by the Veteran's service-connected PTSD or any other service-connected disability. The examiner must provide an explanation with supportive reasoning and factual bases for opinion and comment on the applicability of the dissertation abstract to the Veteran's case. 4. Thereafter, readjudicate the claim for service connection for sleep apnea. If the benefit sought is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a Supplemental Statement of the Case and afford an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ MARJORIE A. AUER 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).