Citation Nr: 18142334
Decision Date: 10/15/18	Archive Date: 10/15/18

DOCKET NO. 14-38 005
DATE:	October 15, 2018
REMANDED
Entitlement to service connection for sleep apnea is remanded.
REASONS FOR REMAND
The Veteran had active service from June 1996 to February 2004.  
This matter comes to the Board on appeal from a May 2013 rating decision.  
The Board notes that although the Veteran’s representative has asserted that entitlement to a TDIU is on appeal, the Veteran did not perfect a timely substantive appeal with regard to the issue of entitlement to a TDIU.  The Veteran’s October 2014 VA Form 9, Appeal to the Board of Veteran’s Appeals, specifically stated that the Veteran was not appealing the issue of entitlement to a TDIU as he was working.  The Board did not receive a substantive appeal of that issue within the remainder of the appeal period.  As such, the issue of entitlement to a TDIU is not currently for appellate consideration.
1. Entitlement to service connection for sleep apnea is remanded.
The Veteran attended a VA examination to determine the etiology of his current sleep apnea in September 2012.  The examiner provided an opinion that the Veteran’s sleep apnea was less likely than not proximately due to or the result of the Veteran’s service connected PTSD, as lay witness statements of record report severe snoring in 1999, years prior to his diagnosis of PTSD.  The Board finds this opinion inadequate for decision making purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  
First, the examiner did not address whether the Veteran’s sleep apnea is chronically aggravated by his PTSD.  Such opinion is necessary on remand.  Second, the examiner should address the March 2012 positive nexus statement of record from the Veteran’s private physician.  Third, the examiner, while noting that there was evidence of symptoms of sleep apnea in 1999 during the Veteran’s service, did not provide a nexus opinion with regard to direct service connection.  As such, the matter is remanded for additional development. 
The matter is REMANDED for the following action:
1. Forward the record and a copy of this Remand to the examiner who performed the September 2012 VA examination, or, if that examiner is unavailable, to another suitably qualified medical professional for completion of an addendum opinion.  If necessary for an adequate opinion, the examiner may obtain another examination of the Veteran.  The examiner must review the entire record and consider the Veteran’s and witnesses’ lay statements as to onset.  The examiner must opine as to the following:
a)	Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was incurred in or caused by service.  The examiner should address the contentions that symptoms existed as early as 1999.
b)	If the opinion to item (a.) above is negative, is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was proximately due to or chronically aggravated by the Veteran’s PTSD.  
A clear rationale for the opinion(s) provided.  In rendering the requested rationale, the examiner should address the private positive nexus statement of record.  
Aggravation is defined as a permanent worsening beyond the natural progression of the disease.
2. After completion of the above, review the expanded record, including any evidence entered since the most recent statement of the case, and determine whether the benefit sought may be granted.  If the 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.
 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Baker, Associate Counsel