Citation Nr: 1338937 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-32 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for sleep apnea, claimed as secondary to service connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 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 contends that he has obstructive sleep apnea that is caused or aggravated by his service connected PTSD. Service connection for PTSD was granted in a February 2006 rating decision, and a 50 percent rating has been assigned for that disability from October 2004. A VA sleep study in October 2009 found mild sleep apnea. An April 2010 VA treatment record includes a notation that PTSD "is at least as likely as not, that [the Veteran]'s PTSD condition contributed to his sleep apnea." (The quotation marks are in the original.) The Veteran filed his claim for service connection for sleep apnea in May 2010. The Veteran submitted a statement dated in August 2008 from a private physician that cites research on sleep apnea and notes that "PTSD might not cause sleep apnea but might exacerbate the symptom, because there are more REM sleeps in PTSD and because the apnea episodes happen during REM sleep due to the decrease in the muscle tone in airway. We can argue that PTSD worsens the sleep apnea." The statement does not contain any specific reference to the Veteran, but appears to be a general statement regarding the relationship between sleep apnea and PTSD. A VA examination was conducted by a physician's assistant in October 2010. She stated that "review of the medical literature and the information available to include his military service and the information in the Durham VAMC records do not give sufficient evidence to state that he has sleep apnea which was caused by military service or PTSD. PTSD is not a cause of sleep apnea; PTSD can cause interrupted sleep but the two are not the same. Review of all the data strongly suggests that the Veteran's anatomy and physiological build are a more likely etiological cause of his sleep apnea....With the present information available, Veteran's sleep apnea is not caused by or secondary to his PTSD or permanently aggravated, beyond its natural progression, by PTSD." The physician's assistant's opinion is inadequate as it does not address either the April 2010 VA treatment record or the private physician's statement, both of which speak to a relationship between PTSD and sleep apnea. Once VA undertakes the effort to provide an examination or opinion when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, another opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion from a VA physician addressing the relationship, if any, between the Veteran's sleep apnea and his service-connected PTSD. The claim file must be provided to the physician. If the physician determines that the requested opinion cannot be provided without another examination, the Veteran is to be scheduled for an examination. The physician should provide answers to the following questions: a. Is it at least as likely as not (50 percent probability or more) that the Veteran's current sleep apnea was caused by his service-connected PTSD? b. Is it at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea was aggravated by his service-connected PTSD? In formulating this opinion, the physician must expressly consider the August 2008 private physician's statement and the April 2010 VA treatment record that contains the quotation cited above. c. If aggravation is found, the physician must determine the baseline level of sleep apnea prior to aggravation by PTSD. This baseline must be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of sleep apnea. A complete rationale with citation to relevant evidence found in the claim file should be provided for each opinion offered. If the physician cannot provide an answer to any of the above questions, the physician is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the physician cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. 2. Then, readjudicate the claim. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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. 2013). _________________________________________________ M. N. HYLAND Acting 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).