Citation Nr: 1803838 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-26 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected residuals, status post broken nose and septorhinoplasty. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to September 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is of record. The Board notes that the Veteran's original claim for depression has been interpreted to include all psychiatric diagnoses, and has been recharacterized as entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Although the Board regrets further delay, remand is necessary for additional development. Sleep Apnea The Veteran suffered a broken nose in service for which he underwent a septorhinoplasty. He asserts that his current disability of obstructive sleep apnea was caused or aggravated by the in-service nose injury and subsequent surgery. Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). The Veteran was afforded a VA examination for his claim in October 2011, where the examiner opined that the Veteran's sleep apnea was less likely than not related to his military service. The examiner explained that, while the Veteran indeed has a nasal obstruction, the "overwhelming risk factor" was the Veteran's obesity, noting a 135 pound weight gain. Although the available VA opinion addresses whether the Veteran's sleep apnea was proximately due to his active service injury and subsequent nasal obstruction, the opinion does not address whether the Veteran's sleep apnea is at all aggravated by his service-connected nasal obstruction disability. As such, an addendum opinion is necessary. The Veteran also asserted in his April 2017 hearing before the undersigned, that the examiner incorrectly noted a 135 weight gain in his opinion finding that the Veteran's sleep apnea was attributed to obesity. The Board notes for the record that the Veteran's service separation examination indicates a weight of 150 pounds, while his weight upon VA examination in October 2011 was noted as 263 pounds, amounting to a 113 pound weight gain since service. Upon remand, the VA examiner opinion should consider the impact of the Veteran's actual post-service weight gain. The examiner should also review the entire claims file, including a July 2011 statement from the Veteran's private physician, Dr. K.J., who opined that the Veteran's nasal obstruction of 70 percent on the left and 60 percent on the right contributes to his sleep apnea. Acquired Psychiatric Disorder The Veteran is service connected for a traumatic brain injury (TBI), which arose subsequent to his aforementioned in-service accident in which he suffered a broken nose. The Veteran's VA treatment records indicate a history of treatment for depression, which he asserts is caused or aggravated by the in-service injury and subsequent nasal disability and TBI. To date, however, no VA examination or opinion has been provided to address this claim. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As such, a VA examination for the Veteran's depression claim should be conducted on remand. The Board also notes that a VA posttraumatic stress disorder (PTSD) examination conducted prior to the Veteran's depression claim in August 2008 indicates diagnoses of major depressive disorder, panic disorder without agoraphobia, and generalized anxiety disorder. TDIU The Veteran asserts that he is unemployable due to the combined effects of his disabilities, specifically his TBI, acquired psychiatric disorder, and sleep apnea. The Board also notes that VA examinations were afforded to the Veteran in May 2010 and April 2012 as to the impact of his service-connected TBI on his employability. However, conflicting medical opinions were provided. As such, an addendum opinion must be obtained to reconcile these conflicting opinions prior to readjudication of the Veteran's TDIU claim. Since the outcome of the service connection claims that are remanded herein could have a significant impact on his TDIU claim, the service connection claims should be adjudicated by the AOJ prior to or at the same time as appellate consideration of the claim for entitlement to a TDIU. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify any remaining outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After the above development has been completed to the extent possible, request an additional addendum opinion from the examiner who performed the February October 2011 VA sleep apnea examination, if available; otherwise the opinion must be sought from a similarly qualified provider. The claims file must be reviewed by the examiner. If a new examination is deemed necessary to respond to the request, one should be scheduled. Following a review of the record, the examiner should respond to the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had its onset during or is otherwise related to his military service. It is noted that the Veteran gained 113 pounds from the time of his separation examination to the time of the October 2011 examination, and not 135 pounds as previously reported. b) If the response to the above is negative, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was (i) caused by or (ii) aggravated by (i.e., worsened beyond natural progress) his service-connected nasal disability. The examiner should consider the Veteran's private treatment records and the July 2011 opinion provided by Dr. K.J. A rationale for all opinions must be provided. The issue of aggravation must be considered directly. An opinion to the effect that one disability "is not caused by or a result of" another disability does not answer the question of aggravation. 3. Schedule the Veteran for a VA psychological examination to determine the nature and etiology of any current acquired psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed and the claims file must be reviewed by the examiner. All current psychiatric disorders must be diagnosed. Following a review of the record, the examiner should respond to the following: a) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed acquired psychiatric disorder had its onset during or is otherwise related to the Veteran's military service. b) If the response to the above is negative, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the any acquired psychiatric disorder was (i) caused by or (ii) aggravated by (i.e., worsened beyond natural progress) a service-connected disability, to include his nasal disability and TBI. A rationale for all opinions must be provided. The issue of aggravation must be considered directly. An opinion to the effect that one disability "is not caused by or a result of" another disability does not answer the question of aggravation. 4. Provide an addendum opinion from an appropriate VA examiner, other than those that performed the May 2010 and April 2012 TBI examinations, as to the effects of the Veteran's TBI on his employability. The claims file must be reviewed by the examiner. If a new examination is deemed necessary, one should be scheduled. 5. After completing the above actions, and any other development deemed necessary, the AOJ should readjudicate the claims on appeal, including the claim for a TDIU. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 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). These claims 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals