Citation Nr: 1752214 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-28 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES Entitlement to service connection for sleep apnea. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1989 to April 1993. These matters come before the Board of Veterans' Appeals (Board) from a September 2012 rating decision by the Department of Veterans Affairs (VA) Reginal Office (RO) in Denver, Colorado. In July 2017, the Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for sleep apnea and PTSD. In July 2017, the Veteran testified that while he was in Desert Storm he inhaled a lot of smoke and dust from the oil wells burning. When he returned from Desert Storm, he was told he snored a lot in his sleep. Later in July 2017, the Veteran submitted a letter from CJ who treated him for his sleep apnea. CJ wrote that the Veteran was currently his patient who suffered from obstructive sleep apnea. He further indicated that the Veteran was exposed to smoke and ash during his time in the military, particular Desert storm. CJ believed that it was possible that the Veteran's respiratory irritants contributed to the development of the Veteran's sleep apnea. The Veteran has not been afforded a VA examination in relation to his sleep apnea claim. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), and given the above, the Board finds that a VA examination is necessary to clarify whether the Veteran's sleep apnea is related to his active duty service. Additionally, the Veteran testified that he started receiving treatment from a private therapist Dr. WW for his anxiety and depression. He indicated that Dr. WW had not yet given him a diagnosis since he just recently started seeing him. The Veteran's wife testified that the Dr. WW had not specifically gone over his PTSD diagnosis but more on coping skills for his anger and depression associated with his PTSD. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide or authorize the release of records from Dr. WW (therapist discussed in July 2017 Board Hearing), as well as any other records, not already of record, that are relevant to his claim. If, after making reasonable efforts to obtain private records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain up-to-date VA treatment records pertaining to the Veteran and associate with the electronic claims file 3. If, and only if, additional medical records pertaining to the Veteran's psychiatric disorder(s), to include from the Veteran's private treatment for his psychiatric disorders, are obtained, refer the case to the VA examiner for an addendum medical opinion regarding the likely etiology of the Veteran's psychiatric disorder. Arrange for the entire record to be reviewed by the VA examiner. If it is determined that another examination is needed to provide the required opinion, the Veteran should be afforded the appropriate VA examination. The examiner should indicate as opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran currently has PTSD related to his period of service. If a diagnosis of PTSD is rendered, the examiner should identify the claimed stressor that serves as the basis for the diagnosis of PTSD. Alternatively, if PTSD is not diagnosed, the examiner should set forth all psychiatric diagnoses and express an opinion as to whether it is at least as likely as not that any current psychiatric disorder had its onset in service or is otherwise related to the Veteran's period of service. The examiner should also render an opinion as to whether it is at least as likely as not that any current psychiatric disorder is caused by or aggravated by a service-connected disability. A complete detailed rationale should be provided for each opinion that is rendered 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his obstructive sleep apnea. The claims file and a copy of this remand directive should be made available to the examiner. Upon review of the claims file and examination of the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's obstructive sleep apnea had its onset in service or is otherwise related to service,? The examiner should address the Veteran's statement that while he was in Desert Storm he inhaled a lot of smoke and dust from the oil wells burning. When he returned from Desert Storm, he was told he snored a lot in his sleep The examiner should provide a complete rationale for any opinions rendered. 5. Readjudicate the claims. If any benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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). _________________________________________________ K. J. ALIBRANDO 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).