Citation Nr: 18159462 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-08 147 DATE: December 20, 2018 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1977 to August 1980 and from August 1981 to August 1998. His decorations include the National Defense Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The RO denied the Veteran’s claim in a June 2015 rating decision, noting that the medical records did not contain a current diagnosis of sleep apnea. However, subsequent to that rating decision, and within a year, the Veteran submitted additional medical evidence; specifically, the report of an October 2015 sleep study setting out a diagnosis of sleep apnea. Although the RO construed the Veteran’s October 2015 correspondence as a claim to reopen, the Veteran submitted new and material evidence within one year of the June 2015 rating decision in the form of the October 2015 sleep study. Accordingly, that decision never became final, and the current claim relates back to the original denial of service connection for obstructive sleep apnea in June 2015. See 38 C.F.R. § 3.156(b) (providing that if new and material evidence is received within one year after the date of mailing of an RO decision, it will be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period”); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final). Obstructive Sleep Apnea The Veteran seeks to establish service connection for obstructive sleep apnea. He asserts that his obstructive sleep apnea began during service or, in the alternative, that it is proximately due to or aggravated by his service-connected PTSD. A review of the record shows that the Veteran was afforded VA examinations in June 2016 and July 2018. However, the Board finds the opinions of record inadequate for purposes of adjudication. A June 2016 VA physician opined that it was less likely than not that the Veteran’s sleep apnea was related to service. The examiner took note of documented in-service symptoms of snoring, but noted that there had been no sleep study in service to support a diagnosis of sleep apnea. However, as the theory of secondary service connection had not yet been raised, no opinion was offered as to the likelihood that sleep apnea was caused or aggravated by PTSD. The Veteran submitted correspondence from Dr. C.B., a private physician, in September 2016. Dr. C.B. opined that the Veteran’s in-service complaints were consistent with the current diagnosis of severe obstructive sleep apnea. However, the physician stated his conclusions with respect to in-service onset in speculative terms. He indicated that the condition “could have been present” in service and “could possibly” have gone undiagnosed. A second VA opinion was obtained in July 2018. Although the examiner addressed the etiology of the Veteran’s sleep apnea based on the causation aspect of secondary service connection, she did not address aggravation as it related to the Veteran’s service-connected PTSD. The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). As the July 2018 examiner did not address aggravation, the examination is incomplete and further development is necessary. Outstanding relevant records of treatment should also be identified and obtained. This matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA and private treatment records. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination pertaining to sleep apnea. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that sleep apnea had its onset in, or is otherwise attributable to, the Veteran’s period of active service. If it is the examiner’s opinion that it is unlikely that sleep apnea had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been (a) caused or (b) worsened beyond natural progression by the Veteran’s service-connected PTSD. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel