Citation Nr: 1803262 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1986 to May 1986, from October 1999 to October 2000, from March 2003 to March 2004, from May 2004 to October 2007, from January 2009 to June 2009, and from later that month in June 2009 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Jurisdiction over the appeal was subsequently transferred to the RO in Seattle, Washington. The Board notes that, while the RO adjudicated other issues in the February 2012 rating decision, the Veteran limited his notice of disagreement, and subsequent appeal, solely to the issue of entitlement to service connection for sleep apnea. In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At the time of the hearing, it was noted the Veteran indicated that he wished to proceed without representation. The Board observes that, subsequent to the Agency of Original Jurisdiction's (AOJ's) most recent adjudication of the Veteran's claim in the February 2014 statement of the case, additional evidence has been associated with the record. This new evidence is subject to initial review by the Board because the Veteran filed his substantive appeal in April 2014, which was after February 2, 2013, when the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 became effective, and he has not requested in writing that the AOJ initially review such evidence. See 38 U.S.C. § 7105(e)(1); Honoring America's Veteran's and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. Therefore, a waiver of this additional evidence is not necessary, and the Board may properly consider such evidence. The appeal is REMANDED to the AOJ. VA will notify the Veteran 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 claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2017); 38 C.F.R. § 3.159 (2017). In his April 2011 claim, the Veteran specifically sought to establish service connection for sleep apnea. His essential contention, which he raised in an August 2012 written correspondence and at his April 2017 Board hearing, is that he had begun to experience symptoms of sleep apnea soon after his return from Iraq in June 2010. In this regard, the Veteran reported that, while in Iraq, his living conditions were poor and he was exposed to multiple smoke and chemical inhalants. He further reported that, once he returned from Iraq, he had trouble sleeping and would wake up gasping for air multiple times throughout the night. Additionally, the Veteran indicated that he constantly wakes up with headaches and fatigue; that he uses prescribed sleeping medications, as well as over-the-counter sleep aids to help him sleep; and that he uses a CPAP machine approximately 3-5 times a week. In this regard, the Board notes that the Veteran was afforded VA examinations in February 2012, December 2013 (with medical opinions), and February 2015 (diagnosed as obstructive sleep apnea). However, during his April 2017 Board hearing, the Veteran indicated that his sleep apnea was secondary to his service-connected PTSD. Here, the Veteran reported that following his bad experiences with death while in-service, he began having nightmares which kept him awake. He further reported that he was told by his medical providers that his PTSD was affecting his sleeping habits. Moreover, in a June 2014 VA examination for the Veteran's PTSD, the Veteran reported that he had difficulty with both falling and staying asleep. The examiner indicated chronic sleep impairment as one of the Veteran's PTSD symptoms. Furthermore, in a March 2015 VA examination pertinent to the Veteran's PTSD, the Veteran reported difficulty sleeping; frequent awakening; nightmares which occurred at least once a week; a decreased need for sleep; and disturbed sleep. The examiner indicated sleep disturbance/chronic sleep impairment as one of the Veteran's PTSD symptoms. Here, the Board has a duty to consider all theories of entitlement to the benefit sought. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (on direct appeals to the Board, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed). In the instant case, the Veteran is service-connected for PTSD, effective March 25, 2014; thus, the appeal has been expanded to include the theory of secondary service connection. Consequently, the Board finds that a remand is necessary in order to obtain an opinion as to whether the Veteran's sleep disorder is separate and distinct from his service-connected PTSD, and, if so, whether such is secondary to such service-connected disability. Additionally, there is no indication that the Veteran has been provided with the proper notice regarding secondary service connection required by the Veterans Claims Assistance Act of 2000 (VCAA). Such should be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claims for service connection for sleep apnea on a secondary basis. 2. To the extent possible, return the record to the VA examiner who rendered the December 2013 opinion. The record, to include a complete copy of this Remand, must be made available to and reviewed by the examiner. If the December 2013 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an addendum opinion addressing the following inquiries: (A) Is the Veteran's diagnosed obstructive sleep apnea a disorder that is separate and distinct from his service-connected PTSD, or is it a symptom, or part and parcel, of such disability? In offering such opinion, the examiner should consider the June 2014 and March 2015 VA examiners' reports that indicated sleep disturbance/chronic sleep impairment as one of the Veteran's PTSD symptoms. (B) If the Veteran's diagnosed obstructive sleep apnea is a disorder that is separate and distinct from his service-connected PTSD, is it at least as likely as not (i.e., a 50 percent or greater probability) that it began in or was aggravated by the active duty or any period or event of active duty? In offering such opinion, the examiner should consider the December 2013 VA medical opinions. (C) If the Veteran's diagnosed obstructive sleep apnea is a disorder that is separate and distinct from his service-connected PTSD, is it at least as likely as not (i.e., a 50 percent or greater probability) that it was caused OR aggravated by the service-connected PTSD? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The examiner's report must include a complete rationale for all opinions expressed. 3. After completing the above actions, to include 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 claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the February 2014 statement of the case. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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 (2017). _________________________________________________ C. CRAWFORD 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).