Citation Nr: 1323991 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-03 163 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a February 2009 rating decision issued by the RO. The Veteran and his wife testified at a hearing held at the RO before the undersigned Veterans Law Judge in August 2012. Although the RO identified the grant of service connection for anxiety disorder as a full grant of the Veteran's claim for service connection for PTSD and major depressive disorder, the grant of service connection was for a disorder other than the one which was claimed. The Veteran did not indicate that that adjudication satisfied his appeal. Notably, at the hearing, the Veteran continued to assert that he had PTSD and that his sleep apnea was secondary to his PTSD, suggesting that he still wished to pursue service connection for this diagnosis. Thus, the issue does remain on appeal at this time. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND With regard to the Veteran's claim of service connection for PTSD and major depressive disorder, additional VA treatment records were added to the claims file, including the electronic claims file, subsequent to the most recent adjudication of this issue. These records show a worsening of symptoms and may be relevant to the Veteran's claim that he now suffers from PTSD and major depressive disorder. Additionally, given the new symptoms, another examination should be obtained as to what diagnosis best describes the Veteran's symptoms, including whether either PTSD or major depressive disorder exists, in light of the new evidence. At his August 2012 hearing, the Veteran advanced different theories of service connection for obstructive sleep apnea. He alleged that it was caused or aggravated by a psychiatric disorder that he identified as posttraumatic stress disorder (PTSD). The Veteran also asserts that his sleep apnea began during service and that it was caused or made worse by his service-connected diabetes mellitus. The only theory advanced by the Veteran prior to his hearing was that sleep apnea was secondary to his psychiatric disorder. A medical opinion regarding the etiology of the Veteran's sleep apnea was obtained in January 2012. However, that opinion only addressed the relationship of the Veteran's sleep apnea to his anxiety disorder since that was the only theory of entitlement asserted at the time. The Veteran testified at the August 2012 hearing that while he was in service other soldiers told him that he snored. He and his wife also testified that the Veteran would snore and intermittently stop breathing at night since the early 1970s. The Veteran's wife noticed this shortly after she married the Veteran in 1973, within a couple of years after his period of service. The Veteran also testified that his doctor told him that his sleep apnea was due to his service-connected diabetes mellitus. In light of this testimony and the additional theories of entitlement, another examination should be obtained that addresses whether the Veteran's sleep apnea was due to an event or incident of service or was caused or aggravated by his service-connected diabetes mellitus. Additionally, if it is determined that the Veteran has a diagnosis of PTSD rather than the anxiety disorder, NOS that was diagnosed at his June 2011 examination, an opinion should be obtained concerning whether the sleep apnea is caused or aggravated by the service-connected disability. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action to have the examiner who conducted the June 2011 VA psychiatric examination, or another suitable physician, review the records that were added to the electronic and paper claims file after June 2011 (most of the recent treatment records are in electronic form) in order to opine whether there is any change in diagnosis or additional diagnoses. He should specifically identify whether, in light of the new records, a diagnosis of PTSD and/or major depressive disorder is substantiated. If the examiner requires an additional examination in order to make this determination, then one should be scheduled. 2. The RO also should take all indicated action to have the examiner who performed the January 2012 VA examination of the Veteran, or another suitable physician, to provide an addendum stating opinion as to whether it is at least as likely as not (at least 50 percent likely) that the claimed sleep apnea had its clinical onset during service or otherwise was caused or aggravated by the service-connected diabetes mellitus or psychiatric disability. The examiner must provide a complete rationale for his conclusions in the report of examination. If the examiner is unable to provide the requested opinion without resort to undue speculation, he or she should explain why this is the case. 3. After completing all indicated development, the RO should readjudicate claims remaining on appeal in light of all the evidence that is of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and then they should be afforded a reasonable opportunity to respond thereto . Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).