Citation Nr: 1512425 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 13-06 214A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for obstructive sleep apnea to include as secondary to post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Hilts, Associate Counsel INTRODUCTION The Veteran served on active duty service from August 1968 to May 1971. This appeal comes before the Board of Veterans' Appeals (Board) from February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama that denied service connection for sleep apnea. The Veteran testified at a videoconference hearing in September 2014. A transcript of the hearing is associated with the claims file. During the hearing, the undersigned Veterans Law Judge held the record open for 60 days for the submission of additional evidence, however, additional evidence was not submitted within that timeframe. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless, electronic claims processing system. The Board notes that, in addition to the VBMS file, there is a separate, electronic (Virtual VA) paperless file associated with the Veteran's claim. A review of the Virtual VA paperless file reveals a copy of the transcript of the hearing and VA treatment records dated November 1998 to September 2012. VA treatment records from January 2012 to September 2012 were not considered by the RO in the statement of the case (SOC) and the evidence was not accompanied by a waiver of consideration. However, as the claim is being remanded, the agency of original jurisdiction (AOJ) will have an opportunity to review all of the submitted documents such that no prejudice results to the Veteran in the Board considering the evidence for the limited purpose of remanding the claim to the AOJ. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. At the outset, the Veteran seeks entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected post-traumatic stress disorder. The Veteran was assigned a disability rating of 70 percent for post-traumatic stress disorder, effective January 2011. The Veteran testified during the September 2014 hearing that he currently uses a continuous positive airway pressure (CPAP) machine to assist him with sleeping, however, due to the vividness of his nightmares, the efficiency and effectiveness of the CPAP machine has been significantly reduced. The Veteran was afforded a VA examination in January 2012 with a corresponding addendum associated with it completed within the same month. The examiner noted that the Veteran was not able to use the CPAP machine because of the increases to his stress level and nightmares. The examiner found that the Veteran had been previously diagnosed with very severe obstructive sleep apnea in July 2009. However, in the addendum opinion, the examiner opined that the Veteran's sleep apnea was less likely as not secondary to his service-connected PTSD. In a supporting rationale, the examiner detailed the most common types of sleep apnea, including obesity and relaxed throat muscles, and concluded that there was no link between the Veteran's sleep apnea and PTSD. In a medical disability questionnaire signed in May 2012, the physician reviewed the claims file and opined that the Veteran's sleep apnea was less likely than not incurred in, or caused by, the service-connected PTSD. In providing a rationale for the opinion, the physician stated that PTSD can cause some sleep disturbances and further stated that patients with PTSD have difficulty using CPAP machines because they feel restless with the mask. However, the physician concluded that sleep apnea does not occur due to PTSD. The Board finds that the examinations are inadequate because the examiners only addressed the causation aspect of secondary service connection, and did not address the aggravation aspect with respect to sleep apnea. 38 C.F.R. § 3.310 (2014). The Court held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection. Allen v. Brown, at 7 Vet. App. 449 (1995). As previously stated, the Veteran asserts that the sleep apnea is aggravated by his service-connected PTSD because he experiences vivid nightmares and that due to his nightmares, he cannot sleep well with the CPAP machine. Therefore, a medical opinion is essential to the Veteran's claim. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary must be considered); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (on direct appeals to the Board, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed). Thus, based on the Veteran's statements and testimony, the Board finds that a new VA examination is necessary to determine whether the Veteran's sleep apnea was incurred in or aggravated by service or his service-connected PTSD. Finally, in a Report of General Information, dated March 2012, the Veteran stated he had submitted a sleep apnea test from Flowers Hospital, the results of which were sent to VA. A July 2009 note from Montgomery VAMC indicated that the imagine of the non-VA sleep study could be viewed with an image display tool. However, records of the private July 2009 sleep apnea study are not contained within the record. On remand, the records of the sleep apnea study as well as the additional VA treatment records noted in the Introduction, should be considered in the readjudication of the case. Accordingly, the case is REMANDED for the following action: 1. Obtain up-to-date VA treatment records from May 2012 forward. 2. Obtain records of the sleep apnea study from Flowers hospital dated in July 2009. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the etiology of the Veteran's obstructive sleep apneal. The examiner should review the entire claims file, including a complete copy of this remand, and consider the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. After the claims file is reviewed, the examiner should offer comments and an opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that each such obstructive sleep apnea had its onset during the Veteran's period of active duty service; or, was any such disorder caused by any incident or event that occurred during his period of service. (b) Is it as least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed sleep is secondary to or aggravated (made permanently worse beyond the natural progression of the disease) by his service-connected PTSD? In forming his/her opinion, the examiner is asked to consider the Veterans lay statements regarding his sleep apnea. The term "as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as it is to find against it. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The VA examination report prepared must be typed. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include the evidence associated with the record since the issuance of the February 2013 statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MARJORIE A. AUER 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).