Citation Nr: 1803997 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-17 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD) with general anxiety disorder and unspecified depressive disorder. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from April 1977 to July 1977 and from February 2003 to January 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In December 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. 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 obstructive sleep apnea. He was diagnosed with moderate obstructive sleep apnea/hypopnea syndrome in an October 2009 private sleep study. He contends that the sleep apnea had its onset during his active service or is causally related to his service-connected PTSD with general anxiety disorder and unspecified depressive disorder. In support of his contention that the sleep apnea is secondary to the service-connected psychiatric disability, the Veteran has submitted the abstract for a medical article from the American Academy of Sleep Medicine discussing the high risk of sleep apnea among young veterans with PTSD, and a private medical opinion from W. Gallemore, M.D. The abstract indicates that 69.2 percent of Iraq and Afghanistan veterans who visited a VA outpatient PTSD clinic for evaluation had a high risk for sleep apnea and that the risk increased with PTSD symptom severity. Although the mechanism underlying the relationship between sleep apnea and PTSD in military veterans is unclear, potential factors that may connect the two disorders include disturbed sleep in combat, prolonged sleep deprivation, and chronic stress from PTSD. In his opinion, Dr. Gallemore states that the Veteran's sleep disorder is more likely than not related to his PTSD. As a rationale for the opinion, Dr. Gallemore explains that the Veteran's symptoms started during his time of service. The Board has considered the Veteran's contentions and the evidence submitted in support of those contentions. The abstract is general in nature and does not discuss the Veteran's particular medical history or current condition. In his opinion, Dr. Gallemore does not specify what records, if any, he reviewed in reaching his conclusion. Moreover, he refers only to a "sleep disorder" and not specifically to the Veteran's sleep apnea. As such, it is unclear whether the opinion even applies to the Veteran's sleep apnea. Therefore, the Board does not accept the abstract or Dr. Gallemore's opinion as probative evidence that the Veteran's obstructive sleep apnea is caused by, due to, or aggravated by the service-connected psychiatric disability. Nevertheless, the abstract and Dr. Gallemore's opinion provide competent evidence that the Veteran's obstructive sleep apnea may be causally related to his service-connected psychiatric disability. VA has not yet obtained an opinion in regard to the question of secondary service connection for the obstructive sleep apnea. Therefore, the Board finds that the issue must be remanded so that such an opinion may be obtained. See 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Forward the record to a VA clinician qualified to provide the information requested below. If the clinician selected determines that the information requested below cannot be provided without an in-person examination of the Veteran, then such an examination should be scheduled. The clinician is asked to review the record and then respond to the following: a) Provide an opinion as to whether it is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea is proximately due to or the result of his service-connected disabilities, specifically to include PTSD with general anxiety disorder and unspecified depressive disorder. b) If not, provide an opinion as to whether it is at least as likely as not that the Veteran's obstructive sleep apnea is aggravated by his service-connected disabilities, specifically to include PTSD with general anxiety disorder and unspecified depressive disorder. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The clinician must note that 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 and will necessitate a further opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The clinician should indicate that the record was reviewed. A complete rationale should be provided for all opinions given. The clinician must discuss the abstract submitted by the Veteran from the American Academy of Sleep Medicine discussing the high risk of sleep apnea among young Iraq and Afghanistan veterans with PTSD. The clinician must also discuss the statement from a January 2016 VA sleep apnea examiner that "PTSD has been medically associated with sleep apnea and other sleep disorders." 2. After completion of the above, review the expanded record, including the evidence entered since the statement of the case, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The appellant 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 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). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).