Citation Nr: 1515316 Decision Date: 04/09/15 Archive Date: 04/21/15 DOCKET NO. 13-00 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for sleep apnea as secondary to service-connected depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) with the Mississippi Army National Guard from January 1993 to May 1993 and he served on active duty from January 2003 to April 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes that the Veteran also submitted a February 2011 notice of disagreement (NOD) for the issue of entitlement to service connection for a lumbar disorder. In an October 2012 rating decision, the RO granted the issue in full; thus, the issue is no longer before the Board. In his February 2011 NOD, the Veteran also expressed disagreement with the rating assigned for his depressive disorder. However, in his December 2012 substantive appeal, the Veteran limited his appeal to the sleep apnea issue. As such, only the sleep apnea issue remains on appeal, as reflected on the title page. The Veteran testified at a decision review officer (DRO) hearing in June 2013. A transcript of that proceeding is associated with the paper claims file. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the case. A review of the Virtual VA folder reveals VA treatment records from June 2008 to May 2009; July 2008 to August 2012; and December 2012 to December 2013; however, those records were considered by the RO in the January 2014 supplemental statement of the case. The VBMS folder contains a December 2014 Appellant's Brief. The remaining documents in both Virtual VA and VBMS are either duplicative of the records in the paper claims file or irrelevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand is required to obtain an addendum opinion regarding the aggravation prong of the Veteran's secondary service connection claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). VA medical opinions were provided in September 2010 and December 2013 on the nature and etiology of the Veteran's sleep apnea. The examiners opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected condition. However, neither examiner provided an opinion on whether the Veteran's sleep apnea was aggravated by his service-connected depressive disorder. Thus, the Board finds that a remand is required to obtain an addendum medical opinion. In addition, the record shows that the Veteran receives treatment from the Tuscaloosa VA Medical Center. Updated treatment records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all relevant records of treatment, to include records from the Tuscaloosa VA Medical Center dated since December 2013. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After the preceding development is completed, return the claims file to the examiner that provided the December 2013 VA medical opinion. If that examiner is unavailable, send the claims file to a similarly qualified examiner. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the Veteran's service-connected depressive disorder, claimed as PTSD, aggravated the Veteran's sleep apnea. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 2014). _________________________________________________ K. MILLIKAN 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).