Citation Nr: 1631519 Decision Date: 08/08/16 Archive Date: 08/12/16 DOCKET NO. 13-35 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 50 percent for PTSD. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In an October 2013 Decision Review Officer (DRO) decision, the RO increased the Veteran's PTSD disability rating to 50 percent, effective May 31, 2011. Inasmuch as a higher rating is available for PTSD, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating for PTSD remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that, in an October 2015 correspondence from his representative, the Veteran requested a hearing before a Veterans Law Judge. However, in a subsequent correspondence received by VA in June 2016, the Veteran withdrew such hearing request. As such, there is no outstanding hearing request. 38 C.F.R. § 20.704(e) (2015). In January 2013 and December 2015, the Board remanded the claims for additional development. The Board notes that additional evidence, to include VA treatment records dated through May 2016, a medical treatise article about a possible link between psychiatric disorders and sleep apnea, and statements from the Veteran and his spouse, was added to the record after the issuance of an October 2013 statement of the case. The Veteran waived initial agency of original jurisdiction (AOJ) consideration of such evidence in an April 2016 correspondence from his representative. See 38 C.F.R. §§ 20.800, 20.1304 (2015). Therefore, the Board may properly consider such newly received evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (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 claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran contends that he suffers from sleep apnea as result of his service-connected PTSD. See April 2016 statement from the Veteran. Service treatment records are negative for complaints, findings, or diagnoses related to sleep apnea. Post-service treatment records reveal that the Veteran was referred for a sleep study as reflected in a June 2011 VA treatment note after complaints of snoring and feeling tired throughout the day. A December 2011 VA treatment note reflects an impression of mild obstructive sleep apnea after noting the Veteran's report of excessive daytime sleepiness. In April 2016, the Veteran's representative submitted a medical treatise article addressing a possible association of psychiatric disorders with sleep apnea. The Veteran has not yet been afforded a VA examination with regard to his service connection claim for sleep apnea. In light of the Veteran's contentions and the medical treatise article submitted by his representative addressing a possible relationship between the Veteran's service-connected PTSD and his sleep apnea, the Board finds that a remand is necessary in order to afford the Veteran a VA examination as to determine the nature and etiology of the Veteran's sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As for the initial rating claim for PTSD, the record reflects that the Veteran was most recently afforded a VA examination for his PTSD in April 2012. The Board finds that an additional examination is necessary as the evidence suggests worsened PTSD symptoms since the Veteran's last VA examination. In this regard, in a statement received in April 2016, the Veteran suggested neglect of hygiene and personal appearance as he "wasn't shaving and washing [his] head" because it "just wasn't a priority." The Veteran also stated that he experiences "rage outbursts," to include violence against his spouse. See April 2016 statement from the Veteran. Furthermore, the clinical evidence indicates that the Veteran suffers from "increased recollections of Vietnam," and "more anxiety, sleep difficulty, and nightmares . . . ." See August 2014 VA treatment note; April 2013 VA treatment note. Therefore, given the time period since the last examination and in light of indication that the Veteran's PTSD symptoms have worsened, the Board finds that a remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine his current level of impairment with regard to his PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In addition, given the time that will pass during the processing of this remand, outstanding VA and private treatment records should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records referable to the Veteran's PTSD and sleep apnea. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. After obtaining all outstanding records, schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of his sleep apnea. The contents of the entire claims file, to include a complete copy of this REMAND as well as any new evidence subsequently added to the claims file, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. (A) The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is related to his military service. (B) If not, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is caused or aggravated by his service-connected PTSD. In offering the opinion, the examiner should address the medical literature received in April 2016 addressing a possible link between the Veteran's PTSD and sleep apnea. The rationale for all opinions offered should be provided. 3. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination by a VA psychiatrist or psychologist to determine the current nature and severity of his service-connected PTSD. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD. The examiner should also specifically address the functional impact such disability has on the Veteran's daily life. All opinions expressed must be accompanied by supporting rationale. 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 paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. 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 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) (2015).