Citation Nr: 18154847 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 15-22 215 DATE: December 3, 2018 REMANDED The claim for service connection for a sleep disorder, to include sleep apnea, as secondary to service-connected posttraumatic stress disorder, (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1978. The Department of Veterans Affairs (VA) is grateful for his service. Claim for service connection for a sleep disorder, to include sleep apnea, as secondary to service-connected PTSD, is remanded. By a June 2017 decision, the Board denied service connection for sleep apnea on the basis that medical records did not support the presence of the disability. The Board then found that sufficient indication of the presence of disability was not shown to warrant a VA examination to address the Veteran’s claim. The Veteran appealed that decision, and the United States Court of Appeals for Veterans Claims (Court) by an April 2018 Order approved a Joint Motion for Partial Remand (Joint Motion) which vacated the portion of the Board’s June 2017 decision denying service connection for sleep apnea. The Joint Motion found that the Board had failed to provide sufficient reasons and basis for its conclusion that the Department of Veterans Affairs (VA) duty to assist had been satisfied. Additionally, the Court concluded that the Board had provided inadequate reasons and bases for its decision denying service connection for sleep apnea. Specifically, the Court found that the persistent symptoms of disability as indicated by the Veteran’s self-report of sleep apnea could serve to indicate current disability, pursuant to 38 C.F.R. §§ 5103A(d)(2)(A), 3.159(c)(4)(i)(A). In light of this governing regulation, the Board concludes that a VA examination is warranted to address whether the Veteran has sleep apnea or another sleep disorder causally related to service or related to service-connected PTSD. The Joint Motion appears to recognize the possibility of a sleep disorder other than sleep apnea, as encompassed within the scope of claim based on self-reported symptoms of disability, since the Joint Motion has directed consideration of the necessity of development based on reported persistent symptoms, rather than simply based on any diagnosis of disability. The Board accordingly recognizes the broader claim, as consistent with caselaw. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). A review of recent VA mental health treatment records reflects the that the Veteran may have some sleep difficulties associated with stress, anger management, nightmares, and poor sleep hygiene. On remand, an examination is warranted to clarify whether the Veteran has a distinct sleep disorder, as contrasted with symptoms associated with his service-connected PTSD, to address whether sleep apnea is present, and to address questions of etiology related to service or service-connected PTSD. The matter is REMANDED for the following actions: 1. The Agency of Original Jurisdiction (AOJ) should secure any relevant, outstanding VA medical records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Required notice must be provided for the Veteran and his representative. 2. Schedule the Veteran for an appropriate VA examination or examinations to determine whether at any time during the claim period he has had sleep apnea or some other sleep disorder distinct from his service-connected PTSD with associated depressive symptoms. To the extent feasible, a sleep study should be conducted. Any other studies, tests, or evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay statements. The examiner is to be advised that the Veteran is competent to attest to observable symptomatology. Hence, the Veteran’s self-report of sleep difficulties should be considered as potentially supportive of the presence of any sleep disorder, and reported sleep symptoms should not be automatically discounted in the absence of objective findings. Rather, a careful evaluation of the evidence should be made to arrive at any medical conclusions, and the examination report should document this evaluation. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should then assess whether sleep apnea or other sleep disorder is present or was present at any time during the claim period. For any sleep apnea or other sleep disorder present at any time during the claim period, the examiner should provide a separate opinion (thus opinions separately addressing more than one sleep disorder if more than one is found) whether it is at least as likely as not (a 50 percent probability or more) that the sleep disorder developed in service or is otherwise causally related to service, and, again separately, whether it is at least as likely as not (a 50 percent probability or more) that the sleep disorder was caused by or permanently aggravated by the Veteran’s service-connected PTSD with associated depressive symptoms. A complete rationale must be provided for each stated opinion. 3. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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 (Continued next page)   development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter