Citation Nr: 1803515 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-29 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected schizophrenia and depressive disorder. WITNESSES AT HEARING ON APPEAL The Veteran, M.J. and P.S. ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1982. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager. LCM contains additional VA treatment records and documents that are either duplicative of the evidence in the VBMS or not relevant to the issues on appeal. The Veteran provided testimony at a March 2015 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The issue of entitlement to service connection for a psychiatric disorder was previously on appeal, as indicated in a June 2015 Board decision. On remand, the Veteran was granted service connection for schizophrenia and depressive disorder. The grant of service connection for this disability constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned; thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Remand is required regarding the low back disorder claim to obtain an addendum opinion that addresses the Veteran's lay statements of continuous symptoms since service discharge. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (noting that an examiner cannot ignore lay evidence and base an opinion on the absence of corroborating medical records). Additionally, at a December 1983 VA examination, the Veteran reported low back pain since service. The examiner diagnosed chronic low back strain, although x-rays were normal. The examiner provided a negative nexus opinion, in part, because there were not chronic complaints of back pain in the record. But the Veteran has reported such symptoms. These statements are supported by the discharge examination containing such subjective complaints and his reports of back pain approximately 1.5 years after discharge at the1983 VA examination that diagnosed chronic low back strain. The 2017 VA examiner should be asked for an addendum opinion after reviewing that record. Remand is required regarding the sleep apnea issue, to obtain an opinion regarding each of the Veteran's theories of service connection. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). At the 2015 Board hearing, the Veteran reported both that his sleep apnea was caused or aggravated by his psychiatric disorders, including medications taken for those disorders, and that the sleeping troubles began during service. Although a March 2017 VA examination provided a secondary service connection opinion, it did not address the medications taken for the disorders nor did it provide a direct service connection opinion. Accordingly, remand is required for an adequate opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the sleep apnea from the 2017 VA examiner, if available. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea had onset in, or is otherwise related to, active service. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea is caused or aggravated by the medications taken for the service-connected psychiatric disorders. 3. Obtain an addendum opinion regarding the etiology of the low back disorder from the 2017 VA examiner, if available. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the low back disorder had onset in, or is otherwise related to, active service. The examiner must provide comment upon the 1983 VA examination. 3. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). _________________________________________________ K. MILLIKAN 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).