Citation Nr: 1512100 Decision Date: 03/20/15 Archive Date: 04/01/15 DOCKET NO. 09-30 225 ) 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. ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from September 1981 to September 1983 and from October 1984 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was remanded by the Board in March 2012 and August 2012 for additional development. In June 2013 the Board denied the claim of entitlement to service connection for sleep apnea. The Veteran appealed the Board's June 2013 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2014 Memorandum Decision, the Court set aside the Board's decision and remanded the case to the Board for further adjudication consistent with its Memorandum Decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the June 2014 Memorandum Decision, the Court noted that the evidence of record raised a new theory of entitlement for service connection for sleep apnea as secondary to his service-connected major depressive disorder, and by failing to discuss whether the claimed disability was proximately due to or the result of his service-connected major depressive disorder, the Board failed to provide an adequate statement of reasons or bases. In this regard it was noted that the service treatment records showed the Veteran complained of sleep difficulties during service related to his depression and marital stress. After service, a VA examiner in October 2004 noted that Veteran was prescribed an antidepressant to help with pain and associated sleep problems. Additionally, the March 2012 and the April 2013 VA medical specialists determined that sleep complaints described in service were related to depression. As such, the Court found that the evidence suggested a relationship between the Veteran's service-connected major depressive disorder and the sleep apnea. Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2014). Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2014); Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is 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 the nonservice- connected disease or injury. 38 C.F.R. § 3.310(2014). While VA obtained a medical opinion addressing whether sleep apnea was secondary to the Veteran's service-connected orthopedic disabilities, there is no competent medical evidence with respect to the question of service connection for sleep apnea as secondary the service-connected major depressive disorder. Thus, a VA medical opinion must be obtained. Relevant ongoing treatment records should also be requested. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA treatment records dating since March 2013. 2. Once the above development is completed to the extent possible, obtain a VA medical opinion from a physician to address whether the Veteran's service-connected major depressive disorder caused or aggravated his sleep apnea. The claims file must be made available to and be reviewed by the VA medical specialist in conjunction with the opinion. If a new examination is deemed necessary, one should be scheduled. After review of the claims file and, if deemed necessary, examination of the Veteran, the VA physician should provide an opinion as to the following: a. Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's current sleep apnea was caused by his service-connected major depressive disorder? Please explain why or why not. b. If the sleep apnea is not caused by service-connected major depressive disorder, then the VA physician should provide an opinion as to whether it is at least as likely as not that the current sleep apnea disorder is permanently worsened beyond natural progression (versus temporary exacerbation of symptoms) by the service-connected major depressive disorder. Please explain why or why not. c. If the VA physician finds that the Veteran's sleep apnea is permanently worsened beyond natural progression (aggravated) by his service-connected major depressive disorder, the physician should attempt to quantify the degree of aggravation beyond the baseline level of the sleep apnea that is due to his service-connected major depressive disorder. The examiner should provide the medical basis for the conclusion reached. 3. After the above has been completed to the extent possible, the AOJ should readjudicate the claim. If the benefits sought remain denied, the Veteran should be issued a supplemental statement of the case and be provided an opportunity to respond before the case is returned to the Board. 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 2014). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).