Citation Nr: 1806047 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-25 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to April 1972, to include service in Vietnam from June 1970 to May 1971. This appeal to the Board of Veterans' Appeal arises from rating decisions in August 2010 and November 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. By way of background, the RO denied entitlement to direct service connection in August 2010 and November 2011 for, inter alia, sleep apnea and COPD. The Veteran was granted entitlement to service connection for his PTSD in a September 2006 rating decision, effective from August 22, 2005. During the Veteran's hearing with the undersigned Veterans Law Judge (VLJ), the Veteran testified that his claimed sleep apnea disability could be attributed to his service-connected PTSD, and the claims file also contains lay statements to that assertion. The Board has thus characterized that issue as listed above. The Veteran testified before the undersigned VLJ at a travel Board hearing in August 2017. A transcript of that hearing is of record. The VLJ who conducted the hearing noted the current appellate issues at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. The Veteran provided testimony in support of his claims and expressed his contentions clearly. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is claiming entitlement to service connection for COPD and for sleep apnea, to include as secondary to PTSD. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran's sleep apnea was noted in a VA general medical examination from November 2009, but the Veteran has never received a VA examination specifically for his sleep apnea. While VA treatment reports show a treatment of COPD in June 2012 and July 2014, the Veteran has never received a VA examination specifically for his COPD. No VA medical opinions with regard to direct and/or secondary service connection for either claimed disability have been made by VA examiners. VA's duty to assist in a Veteran's claim includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has current diagnoses of sleep apnea and COPD disabilities, he has provided statements indicating an onset of symptoms in service, he has indicated his symptoms have been persistent since service, and there is otherwise insufficient medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Board finds that a remand for VA examinations addressing the nature and etiology of the Veteran's COPD and sleep apnea, to include as secondary to service-connected PTSD. Accordingly, the case is REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for VA examinations to determine the nature and etiology of the Veteran's sleep apnea and COPD disabilities. The claims file must be made available to and reviewed by the examiner(s). After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a. Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed sleep apnea disability had its onset in service or is otherwise related to any in-service disease, event, or injury. i. If not, is it at least as likely as not (a fifty percent probability or greater) that the sleep apnea disability was caused by the Veteran's service-connected PTSD and/or the medications required for it? ii. If the medications for the PTSD disability did not cause the sleep apnea disability, is it at least as likely as not (a fifty percent probability or greater) that sleep apnea disability was aggravated by the PTSD disability or its medications? iii. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of sleep apnea by the service connected disability. b. Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed COPD disability had its onset in service or is otherwise related to any in-service disease, event, or injury. 3. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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 (West 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).