Citation Nr: 18152031 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-43 114 DATE: November 20, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), claimed as secondary to service connected posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for chest pain with difficulty breathing, is remanded. Entitlement to a rating in excess of 50 percent for service connected PTSD prior to April 6, 2014, and in excess of 70 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, the currently diagnosed OSA, is secondary to the Veteran's service-connected PTSD. CONCLUSION OF LAW The criteria to establish service connection for OSA, secondary to service-connected PTSD, are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had active service in the United States Army from August 1989 to July 1995 and from August 1999 to January 2002. These matters comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Columbia, South Carolina, Regional Office (RO). The record before the Board can reasonably be construed to include a request for a TDIU; however, the RO has yet developed this claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Service Connection for OSA. The Veterans contends his currently diagnosed OSA is the result of his service-connected PTSD. For the reasons that follow, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for OSA is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). To prevail on the theory of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). As an initial matter, the Board finds that the Veteran has currently diagnosed OSA. Specifically, a May 2013 VA sleep study diagnosed OSA. In July 2013, the Veteran underwent a VA examination for OSA. The VA examiner diagnosed the Veteran with OSA but failed to provide an opinion on its etiology. In May 2018, the Veteran underwent a private examination to determine the etiology of the OSA. After an interview with the Veteran and a reviewing the claims file, the private examiner opined that that it is more likely than not caused and permanently aggravated by the service-connected PTSD. As an initial matter the Board finds the July 2013 VA examination less probative because no opinion on the etiology of the Veteran’s OSA was provided. By contrast, the Board finds the May 2018 private medical opinion, thorough and adequate because it provides a sound basis upon which to base a decision with regard to the issue adjudicated in this decision. The opinion considers the pertinent evidence of record, to include the Veteran's medical history, and provided rationales for the opinions stated. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and more definitively opine on the etiology of the current OSA. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Here, the only adequate opinion of record found that the Veteran’s OSA was aggravated by the service-connected PTSD. Therefore, service connection for OSA, claimed as secondary to service-connected PTSD is warranted. See 38 U.S.C.§ 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service Connection for Chest Pain and Difficulty Breathing Is Remanded. The Veteran contends that service connection is warranted for chest pain with difficulty breathing. Service treatment records show that in March 1995 the Veteran reported chest pain with a cough. During a July 2013 Gulf War Examination, the Veteran reported that his chest pain had resolved. However, the Veteran has appealed the August 2013 denial of service connection for chest pain and difficulty breathing and VA treatment records show a March 2015 hospital admission for chest pain. As the evidence suggest there may be a current disability, a remand is necessary to determine the etiology of any chest pain and difficulty breathing. 2. Entitlement to an Increased Rating for Service-Connected PTSD is Remanded. The Veteran contends that a rating in excess of 50 percent is warranted for service connected PTSD prior to April 2014 and in excess of 70 percent thereafter. After review of the record a remand is necessary to allow the Board to make a fully informed decision. The Veteran last underwent a VA examination to determine the severity of the service-connected PTSD in May 2016. VA treatment recorded associated with the claims file indicate continued treatment for PTSD. In September 2017, the Veteran underwent a VA behavioral health assessment where he reported generally feeling better and declined further counseling. In February 2017, the Veteran submitted two buddy statements on the severity of his service-connected PTSD and its impact on his daily life and relationships. Further, in March 2018, a private Vocational Consultant submitted an assessment of the impacts of the Veteran’s PTSD on his ability to maintain substantially gainful employment. While the passage of time alone does not warrant a new examination, given the complaints of worsening, continued treatment for PTSD, and the additional evidence submitted, the Board finds that a current examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's claim for entitlement to a TDIU is inextricably intertwined with the issue of entitlement to an increased rating for service-connected PTSD, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. The Veteran should also be sent a VCAA notice letter for the TDIU component of his increased evaluation claim. This letter should notify the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. 2. Contact the Veteran and ask him to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by VA or non-VA health care providers for any mental health or chest pain with difficulty breathing treatment. If the Veteran provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. 3. Obtain all VA treatment records since November 8, 2017 and associate them with the electronic claims file. 4. After completion of the above-specified development. Schedule the Veteran for a VA examination to determine the etiology of any chest pain and difficulty breathing. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that any current chest pain or difficulty breathing had onset in service or is etiologically directly related to active service? 5. Schedule the Veteran for a VA examination to determine the current nature and severity of the service-connected PTSD. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should specifically comment on the impact of the Veteran's PTSD upon his ability to obtain substantially gainful employment. The VA examiner must indicate review of both the February 2017 Buddy Statements and the March 2018 Vocational Consultant’s Report. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel