Citation Nr: 1808386 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-15 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection, to include on a secondary basis, for obstructive sleep apnea (OSA). 2. Entitlement to an increased initial rating in excess of 30 percent disabling for an acquired psychiatric disorder. 3. Entitlement to service connection, to include on a secondary basis, for erectile dysfunction (ED). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to April 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2012 and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, review of the record reveals that the claims must be remanded for additional development prior to appellate consideration. As a preliminary matter, the Board notes that most recently a June 2015 rating decision denied, in pertinent part, entitlement to service connection for ED (claimed as secondary to diabetes mellitus (DM), type II). In May 2016, the Veteran timely filed a notice of disagreement with that decision, thereby placing the issue in appellate status. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). A statement of the case (SOC) has not yet been issued for the June 2015 denial; therefore, a remand is required for the issuance of a SOC. Id. Parenthetically, the Board notes that a February 2017 rating decision by the RO granted entitlement to service connection for DM and peripheral neuropathy of the bilateral lower extremities. Further, the Board notes that report of the February 2017 VA reproductive examination reflects the Veteran's ED is etiologically related to his DM. Next, the Board turns to the Veteran's claimed entitlement to service connection, to include on a secondary basis, for OSA. In August 2016, the Veteran was provided with a VA sleep disorder examination. Report of the August 2016 VA examination reflects, in pertinent part, a diagnosis of OSA. At that time, the Veteran reported experiencing symptoms such as snoring "for a long time." The examiner noted the Veteran currently uses a continuous positive airway pressure (CPAP) machine to help alleviate his symptoms. The examiner opined that the Veteran's OSA is not proximately due to his service-connected psychiatric disorder. An addendum opinion was obtained in May 2017. At that time, the examiner opined that the Veteran's OSA is also not aggravated by his service-connected psychiatric disorder. In that regard, the Board notes that in a statement dated in November 2014, the Veteran reported experiencing symptoms such as loud snoring in and since service. He indicated that although he experienced such symptoms, his lack of knowledge regarding OSA is what prevented him from seeking appropriate treatment earlier. Developmental actions on a direct theory of entitlement have not yet been taken. As such, a remand is appropriate to address this theory of entitlement. Lastly, the Board turns to the entitlement to an increased initial rating in excess of 30 percent disabling for an acquired psychiatric disorder. In December 2017, the Veteran's representative submitted a statement requesting, in pertinent part, this matter be remanded for an additional examination because the Veteran's previous examination- a February 2011 VA examination-is too remote to evaluate the current severity of his condition. In that regard, the Board notes that the most recent VA psychiatric examination of record was conducted in October 2016. Notwithstanding, a review of the record reflects the Veteran's numerous statements regarding worsening in severity and/or frequency of symptoms. For instance, treatment records dated in December 2016 reflect the Veteran reported experiencing increased dysphoria, social isolation, and irritability. The Veteran further reported that sleep has become extremely erratic despite medication. Treatment records dated in March 2017 reflect the Veteran reported nightmares with related sleep disturbance occurring with more frequency and persistent dysphoria. Treatment records dated June 2017 reflect the Veteran reported experiencing a discernable increase in severity of psychiatric symptoms such as depression with low energy, social isolation, and anhedonia. The Veteran also reported observable weight-gain. Treatment records dated in August 2017 reflect the Veteran reported increased symptoms of social isolation, hypervigilance, and sleep disturbance. Given the evidence of worsening in the medical records dated after October 2016, the Board finds that a remand is appropriate to obtain a medical examination that adequately addresses the Veteran's current level of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Accordingly, the case is REMANDED for the following action: 1. Issue a SOC to the Veteran and his representative addressing the issue of entitlement to service connection for ED. If necessary, inform the Veteran and his representative of the time period in which to submit a timely substantive appeal as to that matter. If, and only if, the Veteran perfects his appeal, the AOJ should return the case to the Board, if otherwise in order. 2. Arrange for the examiner who conducted the August 2016 sleep disorder examination, if available, or other appropriate medical professional, to prepare an addendum opinion as to the nature and etiology of the Veteran's claimed OSA, and if deemed necessary, conduct a new examination of the Veteran. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner should offer an opinion as to the following: Does the Veteran have OSA? If so, the examiner should identify whether it is as likely as not (i.e., a 50 percent or better probability) that such disability is caused by, or otherwise etiologically related to military service. Any opinion rendered should reflect consideration of the Veteran's lay statements regarding ongoing symptomatology. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, schedule the Veteran for VA examination by an appropriate medical professional to prepare an opinion with respect to the nature and severity of the Veteran's psychiatric disability. In particular, the examiner should document the current symptomatology described by the Veteran and the severity, frequency, and duration at which such symptoms manifest. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. 4. Thereafter, readjudicate the issues remaining on appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). _________________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).