Citation Nr: 1803050 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 13-06 348A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 70 percent for PTSD. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert P. Walsh, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Smart, Associate Counsel INTRODUCTION The Veteran had active service from October 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Detroit, Michigan. The March 2012 rating decision continued the 70 percent rating for PTSD and the denied entitlement to a TDIU. The Veteran filed a notice of disagreement in April 2012 and was provided with a statement of the case in January 2013. The Veteran perfected his appeal with a March 2013 VA Form 9. The March 2014 rating decision denied service connection for sleep apnea. The Veteran filed a notice of disagreement in February 2015. The Veteran testified before the undersigned in October 2016 regarding the issues of entitlement to an increased rating for PTSD and entitlement to a TDIU. The Veteran was provided with a statement of the case for the issue of entitlement to service connection for sleep apnea in August 2017. The Veteran perfected his appeal with a September 2017 VA Form 9. This appeal was processed using the Veterans Benefits Management System (VBMS). A review of the Veteran's Legacy Content Manager Documents file reveals VA treatment records dated June 2005 to April 2010 and June 2011 to December 2013. The file also includes the March 2014 VA sleep examination. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND All Issues First, a January 2013 correspondence shows that the Veteran's Social Security Administration (SSA) file had been sent to the RO via CD. However, a review of the Veteran's electronic claims file does not reveal the SSA determination or the underlying medical treatment records. As such, a remand is necessary to associate the Veteran's SSA records with the claims file. Additionally, VA treatment records dated between December 2013 and July 2016 have not been associated with the claims file. Therefore, on remand, any outstanding VA treatment records should be obtained. Sleep Apnea The Board also notes that the Veteran was afforded a VA sleep examination in March 2014. The examiner noted that the Veteran was diagnosed with obstructive sleep apnea (OSA) on a sleep study in 2004. The examiner noted that he was diagnosed and service-connected for PTSD in 2007. The examiner noted that the Veteran was diagnosed with OSA prior to his diagnosis of PTSD. The examiner explained that OSA is caused by a blockage of the airway, usually when the soft tissue in the back of the throat collapses during sleep. The examiner explained that the risk factor for OSA include being male, age, and weight. The examiner noted that the Veteran's BMI at the time of diagnosis was 27.9 and has fluctuated between that number and 30.64 since that time. The examiner explained that sleep disturbances are common in individuals with PTSD. The examiner noted that a study by Dodson et al (Chest. 2010; 138(4):616A) found that 73 percent of randomly selected patients with PTSD showed OSA on sleep testing. The examiner stated that however, the pathophysiologic basis for this finding is not clear. The examiner explained that it is likely that this is simply a coexistence of these two common conditions rather than a direct causal relationship between these two conditions, because OSA is caused by an actual structural blockage. The examiner concluded that the claimed condition sleep apnea is less than likely as not secondary to his service connected PTSD. The Veteran was afforded a VA addendum opinion in June 2017. The March 2014 examiner noted review of the new research submitted in VBMS and the March 2014 VA opinion. The examiner concluded that the Veteran's sleep apnea is less than likely as not caused by PTSD. The examiner explained that review of the medical literature does not show that PTSD causes sleep apnea. The examiner noted that he reviewed the new articles/research submitted by the Veteran's attorney. The examiner explained that these articles do not support PTSD as a cause of sleep apnea. The examiner explained that although medical literature has shown that it is common for individuals with a diagnosis of PTSD to also have sleep disturbances, none of these articles nor any medical literature has shown that PTSD is an etiological cause of sleep apnea. The examiner stated that therefore, he continued to agree with the March 2014 opinion. Although the examiner addressed the research submitted by the Veteran's attorney, he failed to address the aggravation element of secondary service connection. Therefore, a remand is necessary to obtain another addendum opinion. PTSD and TDIU First, the Board notes that page two of the November 2015 private opinion from Dr. E.T is not associated with the claims file. As such, on remand attempts should be made to obtain such records. Additionally, the Veteran was last afforded a VA examination regarding his PTSD in August 2011. As the claim is being remanded herein, the Board finds that the Veteran should be afforded a new VA examination to determine the current severity of his PTSD. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating]). In regards to his claim for TDIU, the Board notes that the evidence of record illustrates that the Veteran was self-employed for at least part of the appeal period. The Board finds that on remand, the RO should request the Veteran to provide further details about his self-employment. The Veteran is asked to clarify the nature and circumstances of any self-employment during the appeal period, including any income received as a result. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran the opportunity to identify any pertinent treatment records. In particular, the RO should obtain page two (2) of the November 2015 private opinion from Dr. E.T. The RO/AMC should secure any necessary authorizations. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Obtain VA treatment records dated December 2013 to July 2016 and October 2016 to the present. 3. Contact the SSA and request the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records in SSA's possession. A copy of any request(s) sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file. 4. Obtain clarification from the Veteran regarding any self-employment from 2011 to the present. He should be asked to submit evidence (e.g., pay stubs, W2 Forms, tax returns, letters from employers etc.) documenting marginal employment, if any, due to his service-connected disabilities, that is, any jobs obtained and maintained that resulted in earned annual income not exceeding the poverty threshold for one person. All actions to obtain the aforementioned requested information should be documented fully in the claims file. 5. Return the Veteran's claims file and a copy of this remand to the examiner that performed the March 2014 and June 2017 VA opinions an addendum opinion. If the requested VA examiner is no longer available, another examiner should be asked to review the claims file and answer the questions posed below, or if this examiner determines that another examination would be helpful, the Veteran should be scheduled for a new examination. The examiner should answer the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed sleep apnea has progressed at an abnormally high rate due to or as a result of the Veteran's service-connected PTSD? In addressing this question, the examiner should discuss the articles/research about PTSD and sleep apnea submitted by the Veteran's attorney. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 6. Schedule the Veteran for a new VA examination to determine the current severity of his PTSD. The Veteran's claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. All appropriate testing should be conducted and complaints and clinical manifestations should be reported in detail. The examiner should also provide an opinion regarding the level of occupational and social impairment caused by the Veteran's PTSD. In particular, the examiner should describe what types of employment activities would be limited because of the Veteran's service-connected PTSD, what types of employment would not be limited (if any), and whether any limitation on employment would likely be permanent. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 7. After completing the above, and any additional development deemed necessary, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain 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 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. §§ 5109B, 7112 (2012). _________________________________________________ DEBORAH W. SINGLETON 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).