Citation Nr: A18000046
Decision Date: 11/21/18	Archive Date: 11/21/18

DOCKET NO. 180810-225
DATE:	November 21, 2018
REMANDED
Entitlement to service connection for sleep apnea is remanded.
REASONS FOR REMAND
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Board is honoring the Veteran’s choice to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program.  
1. Entitlement to service connection for sleep apnea is remanded.
The issue of entitlement to sleep apnea is remanded to correct a duty to assist error that occurred prior to the May 2018 rating decision on appeal. The Agency of Original Jurisdiction (AOJ) did not obtain a VA examination prior to the May 2018 rating decision on appeal regarding whether the Veteran’s sleep apnea is caused or aggravated by his service-connected major depressive disorder. However, based on the evidence associated with the claims file prior to the May 2018 rating decision, the Board finds that a VA examination/medical opinion was required to determine whether sleep apnea is caused or aggravated by service-connected major depressive disorder.
The April 2017 VA examination of record did not address secondary service connection.  In February 2018, the Veteran provided a private physician’s statement that “it is as likely as not that [the Veteran]’s service connected Major Depressive Disorder condition contributes to or exacerbates his Sleep Apnea condition.”  
Another examination, with an opinion addressing the Veteran’s contentions regarding secondary service-connection for sleep apnea is warranted.
The matter is REMANDED for the following action:
Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of his current sleep apnea disability. The entire record must be reviewed by the examiner. 
a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current sleep apnea disability had its onset during service or is otherwise related to service. 
b) Provide an opinion as to whether it is at least as likely as not that any current sleep apnea disability is proximately caused by or aggravated by the Veteran’s service-connected major depressive disorder.
Answering this question requires two separate opinions: one for proximate causation and a second for aggravation. The term aggravation means a permanent worsening of the disorder beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should attempt to establish a baseline level of severity of the sleep apnea disability prior to its aggravation by the major depressive disorder. 
The examination report must include reference to the February 2018 private physician’s statement and a complete rationale for all opinions expressed. 

 
D. JOHNSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. G. Mazzucchelli, Counsel