Citation Nr: 1340153 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 11-22 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea, claimed as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Martinez, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to September 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. 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 submitted a claim of entitlement to service connection for sleep apnea, as secondary to his service-connected PTSD. For the reasons discussed below, the Board finds that a remand is required for further development of this claim. Although a September 2010 VA examination was conducted, and a May 2012 addendum was provided, the VA examiner did not address whether the Veteran's sleep apnea was aggravated by his service-connected PTSD. The VA examiner only addressed whether the Veteran's sleep apnea was caused by or a result of his service-connected PTSD, and gave a negative opinion. Thus, it is unclear whether any sleep apnea the Veteran has may have been aggravated by his service-connected PTSD. The Board finds this is a medical question outside of its jurisdiction. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Consequently, an addendum VA examination opinion is required to determine whether the Veteran's sleep apnea may have been aggravated by his service-connected PTSD. In addition, in July 2010, the Veteran was provided with Veterans Claims Assistance Act of 2000 (VCAA) notice on the evidence and information necessary to support his service connection claim for sleep apnea, but only on a secondary basis to his service-connected PTSD. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). However, it appears that the Veteran also claims entitlement to service connection on a direct basis. See Statement in Support of Claim dated in November 2010. Consequently, the Veteran must be provided proper VCAA notice as to the evidence and information necessary to substantiate his claim of entitlement to service connection for sleep apnea on a direct basis. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with proper VCAA notice for his claim of entitlement to service connection for sleep apnea on a direct basis. 2. Return the Veteran's claims file to the examiner who conducted the Veteran's September 2010 VA examination for an addendum opinion, or to a qualified medical professional if the examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The VA examiner should thoroughly review the Veteran's VA claims file, including the Veteran's service treatment records. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea was aggravated by his service-connected PTSD. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the Veteran's sleep apnea before the onset of the aggravation. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Upon completion of the above, the RO must readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, provided an opportunity to respond, and the case should thereafter be returned to the Board for further appellate consideration, as appropriate. 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). _________________________________________________ MICHAEL MARTIN 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).