Citation Nr: 1514420	
Decision Date: 04/03/15    Archive Date: 04/09/15

DOCKET NO.  12-11 591A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an effective date prior to April 4, 2012, for the award of service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for sleep apnea, to include as secondary to the service-connected PTSD.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran, his wife and his stepson




ATTORNEY FOR THE BOARD

A. Adamson, Counsel


INTRODUCTION

The Veteran served on active duty from December 1965 to November 1967.  This appeal comes before the Board of Veterans' Appeals (Board) from May 2009 and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2015.  A transcript of the hearing is of record. 

The Board is aware that the Veteran did not submit a VA Form 9 in response to the February 2014 statement of the case related to the issue of entitlement to an earlier effective date for service connection for PTSD.  Nonetheless, in light of the Veteran's February 2015 hearing testimony on the issue, the Board accepts jurisdiction of the appeal.  See Percy v. Shinseki, 23 Vet. App. 37 (2009) (a timely substantive appeal is not a jurisdictional requirement for the Board's consideration of a veteran's claim).  

The record before the Board consists of electronic records within the Veterans Benefits Management System (VBMS).

The issue of entitlement to service connection for sleep apnea is addressed in the REMAND that follows the ORDER section of this decision.  





FINDINGS OF FACT

1.  On September 9, 2008, more than one year following his discharge from service, the Veteran filed his original claim seeking service connection for PTSD.

2.  The Veteran's service-related PTSD was present when he filed the claim.


CONCLUSION OF LAW

The criteria for an effective date of September 9, 2008, for the award of service connection for PTSD are met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In general, the effective date of an award based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). 

In this case, the Veteran separated from active service in November 1967.  He filed his original claim for service connection for PTSD on September 9, 2008, well outside of one year following his service separation.  The record adequately establishes that his service-related PTSD was present when the claim was filed.  Therefore, the appropriate effective date for the award of service connection for PTSD is September 9, 2008, the date VA received his claim.




ORDER

An effective date of September 9, 2008, for the award of service connection for PTSD is granted.


REMAND

The Board finds that further development is required before the claim of entitlement to service connection for sleep apnea is adjudicated. 

The Veteran contends that his service-connected PTSD and/or diabetes mellitus has caused or aggravated his sleep apnea.  Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2014).  Further, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected.  38 C.F.R. § 3.310(b) (2014).
   
VA treatment records dated in July 2008 show treatment for insomnia with an indication of associated psychiatric symptoms.  The results of a November 2008 VA administered sleep study are also of record.  They show a diagnosis of severe obstructive sleep apnea hypopnea syndrome.   

In April 2008, the Veteran underwent a VA examination related to his sleep apnea claim as it relates to his diabetes mellitus.  The VA examiner found no causal relationship between the Veteran's sleep apnea and his diabetes mellitus.

In March 2015, a private physician submitted a statement suggesting a causal connection between the Veteran's sleep disorder and his PTSD.  The physician's opinion is, however, without a rationale.  The physician noted a review of the 2008 sleep study and reported that the Veteran continues, since 2008, to experience severe daytime somnolence and insomnia caused by and complicated by his service-connected PTSD.  There is no stated rationale for the opinion that any sleep disorder experienced by the Veteran is causally connected to his psychiatric disorder.  Further, it is unclear whether the physician is finding a causal connection between PTSD and insomnia, which is indeed included in the rating criteria for PTSD, or whether there is a causal connection between PTSD and the claimed sleep apnea.  Under the circumstances, the Board finds that the duty to assist set forth at 38 C.F.R. § 3.159 requires that the Veteran be scheduled for a new VA examination in response to his claim that his sleep apnea is either proximately due to or aggravated by his service-connected PTSD. 

The Board also observes that the March 2015 private physician's opinion was received into the record subsequent to the issuance of the April 2012 statement of the case.  RO consideration of the additional evidence was not waived. Accordingly, the originating agency must be given the opportunity to review this evidence before the Board can enter a decision.  See 38 C.F.R. § 20.1304(c) (2014).

Moreover, the Veteran's substantive appeal on the issue of service connection for sleep apnea included a request for a videoconference hearing before the Board.  Should the development required not result in a grant of service connection for sleep apnea, the RO must schedule the Veteran for his requested hearing. 

Finally, on remand, relevant ongoing medical records also should be obtained.  38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159(c) (2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED to the RO for the following actions:

1.  Undertake appropriate development to obtain all outstanding VA and private medical records pertaining to post-service treatment of the Veteran's sleep apnea.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified.

2.  Once the record is developed to the extent possible, afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of his sleep apnea.  

All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated studies should be performed.  

Based on review of the record and examination of the Veteran, the examiner should state a medical opinion with respect to the Veteran's sleep apnea as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder is etiologically related to active service.  If not, the examiner should state an opinion as to whether it is at least as likely as not that the disorder was caused or permanently worsened by the Veteran's service-connected PTSD.  The examining physician must consider the March 2015 private opinion. 

For purposes of the opinions, the examiner should assume that the Veteran is credible.  The rationale for all opinions expressed must be provided.  If the examiner is unable to provide any required opinions, he or she should fully explain why he or she is unable to do so.

3.  The RO should also undertake any other development it determines to be warranted.

4.  Then, the RO should readjudicate the issue of whether service connection is warranted for sleep apnea, to include due to service-connected PTSD.  In doing so, the RO must consider all evidence received since the April 2012 statement of the case.  If the benefits sought are not granted to the Veteran's satisfaction, the RO must schedule the Veteran for his requested videoconference hearing before the Board.  

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs