Citation Nr: 1807893 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-06 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). (The issues of entitlement to increased ratings for PTSD and for bilateral hearing loss, as well as entitlement to a total disability based on individual unemployability due to service connected disability, are the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction is now with the RO in St. Petersburg, Florida. In July 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board video conference hearing. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND This appeal involves consideration of the claim on both a direct and secondary basis. That is, consideration must be given to whether the Veteran's sleep apnea was incurred in or aggravated by service and, alternatively, whether it is proximately due to or the result of a service connected disability, namely PTSD. See 38 C.F.R. §§ 3.303, 3.310. At the Board video conference hearing in July 2017, the undersigned VLJ granted the Veteran 60 days in which to submit additional evidence in support of his appeal. Thereafter, in August 2017, the AOJ received a blanket nexus medical opinion relating by a more likely than not standard the Veteran's obstructive sleep apnea to "an onset or events while in service". This favorable opinion does not include any explanation or rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). Under the VCAA, an examination or medical opinion is warranted when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, supra. In light of the above, the Board finds that this case must be remanded so that the Veteran may be afforded a VA examination. 38 U.S.C.A. § 5103A(d). In this regard, while the Veteran was previously afforded a VA examination for his sleep apnea in October 2014, the examiner was only asked to render a nexus opinion on a secondary service connection basis. 38 C.F.R. § 3.310. Thus, in order to make a fully informed decision in this appeal, a new examination is necessary that addresses this claim on a direct service connection basis. 38 C.F.R. § 3.303. Also, on remand, any outstanding pertinent medical records should be obtained. 38 U.S.C.A. § 5103A(b),(c). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with the opportunity to identify any outstanding relevant treatment records, from either private or VA facilities, which pertain to his claim for service connection for sleep apnea on either a direct or secondary basis. Appropriate steps should be taken to obtain any such identified records, as well as to update any outstanding VA medical records. All reasonable attempts should be made to obtain such records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. Any and all studies, tests, and 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, lay statements and a copy of this remand. It should be noted that the Veteran is competent to attest to observable symptomatology. 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 provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is etiologically related to his military service. A clear rationale for the opinion must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Thereafter, the AOJ should readjudicate the issue of entitlement to service connection for sleep apnea in light of all the evidence of record on both a direct and secondary basis. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case that includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond thereto. The Veteran and his representative have the right to submit additional evidence and argument on the matter or matters 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 development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).