Citation Nr: 1751471 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-03 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disease or injury. 2. Evaluation in excess of 50 percent for anxiety and depression, not otherwise specified. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1987 to July 1991 in the United States Navy. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon review of the record, remand is required for further development. Obstructive Sleep Apnea In its May 2016 remand, the Board discussed a July 2012 examination report which noted obesity as the best documented risk factor for obstructive sleep apnea. The Board further discussed the Veteran's contention that his service-connected lumbar spine and psychiatric disorders made it difficult to exercise. The Veteran stated that the pain associated with his lumbar spine disorder impaired his ability to weight train, ride a bike, and walk; and that his psychiatric disorder made it difficult for him to exercise in public places. Accordingly, the Board remanded the case because "a medical opinion is necessary to determine whether the Veteran's obesity developed as a result of his service-connected lumbar spine and psychiatric disorders, which in turn caused or aggravated his obstructive sleep apnea." The Board directed the RO or Appeals Management Center to "schedule the Veteran for an examination in conjunction with the Veteran's claimed sleep apnea." During this examination, the Veteran's lay history of symptomatology was to be recorded and considered. However, a review of the record reveals an examiner's opinion was obtained without an in-person examination. This was not in compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In the examiner's June 2016 opinion, the examiner addressed obesity in relation to the Veteran's psychiatric medication, but did not otherwise comment on whether his psychiatric disabilities would limit his ability to exercise and contribute to or cause obesity. In a September 2016 addendum opinion, the examiner stated the Veteran's sleep apnea is not related to mental health concerns or lumbar strain. In support, the examiner stated sleep apnea "is due to the soft tissues in the mouth occluding the trachea". However, the examiner did not discuss "whether the Veteran's obesity developed as a result of his service-connected lumbar spine and psychiatric disorders ". Furthermore, the examiner did not comply with Board's remand directive to comment on whether the Veteran's obesity has caused his sleep apnea. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes the Veteran is service connected for additional disabilities which may limit his ability to exercise e.g. lower extremity radiculopathy and chronic bronchitis. Further, factors such as the capacity for exercise, genetics, and nutritional choices, and medications for disorders other than psychiatric must be addressed. For example, VA outpatient treatment records in 2014 and 2015 note that the Veteran engaged in swimming and short time on an elliptical device in an effort to lose weight. One mental health examiner noted that the Veteran lost 24 pounds by being mindful of caloric intake. In light of the above, remand is warranted for an examination and opinion regarding the relationship between the Veteran's service-connected disabilities, obesity and obstructive sleep apnea. Anxiety and Depression The Veteran contends he was not rated properly in the August 2012 rating decision. The Veteran was last afforded a VA examination for this claim in June 2012. The evidence of record indicates a possible worsening in his condition, including self-harm. See October 2016 Statement in Support of Claim (Veteran reports cutting himself); April 8, 2015 VA treatment note; see also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (addressing types of suicidal ideation and the need to differentiate between ideation and risk of self-harm). When the evidence of record "does not adequately reveal the current state of the claimant's disability . . . , the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination." Caluza v. Brown, 7 Vet. App 498, 505-506 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In light of the time that has passed since his last VA examination and the Veteran's self-harming behavior, the Board finds an additional examination is required to assess the current state of the Veteran's psychiatric disabilities. The Board notes that a February 2016 rating decision code sheet indicates the Veteran was to have a psychiatric examination in August 2017. The record does not contain an examination report or otherwise indicate such an examination took place. Remand is warrant to obtain a medical examination and opinion regarding the Veteran's current psychiatric state or, if the August 2017 examination took place, to obtain the corresponding examination report. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA records of evaluation and/or treatment since April 2016. 2. In compliance with the Board's May 2016 remand, schedule the Veteran for an examination in conjunction with the Veteran's claimed sleep apnea. The Veteran's lay history of symptomatology should also be recorded and considered. Based on the examination of the Veteran and a thorough review of the record, the examiner should provide an opinion on: Whether it is at least as likely as not (50 percent probability or higher) that any currently diagnosed sleep apnea is proximately due to or aggravated beyond the normal progression by a service-connected disease or illness, either individually or in combination. In providing this opinion, the examiner shall comment on whether the Veteran's service-connected disabilities have caused or contributed to his obesity and whether his obesity has caused to his sleep apnea. All factors relevant to obesity in this Veteran's case such as the capacity for exercise, genetics, and nutritional choices, and medications for disorders as well as the service-connected disorders themselves must be assessed as whether they caused obesity as an intermediate step to cause or aggravate sleep apnea. If aggravation beyond the normal progression is found, the degree of aggravation and baseline prior to aggravation should be specifically identified, if possible. Supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. 3. If the Veteran underwent VA examination for his psychiatric disabilities, obtain a copy of the examiner's report; otherwise, schedule the Veteran for a VA examination by an appropriate medical professional. Accordingly, the examiner is asked to review all relevant records and conduct a clinical evaluation. Based on this review and evaluation, the examiner is asked to provide an assessment of the current nature of the Veteran's psychiatric disabilities. The examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the disabilities. Supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion, he or she should explain why. 4. After undertaking any additional development deemed appropriate, adjudicate the claims in light of any additional evidence added to the record. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. 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). _________________________________________________ J. W. FRANCIS 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) (2017).