Citation Nr: 1817152 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 12-05 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for sleep apnea, to include as due to service -connected psychotic disorder, not otherwise specified. REPRESENTATION Veteran represented by: Andrew L. Wener, Attorney at Law ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from September1973 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Jackson, Mississippi. A December 2015 order of the Board granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and remanded the following issues: entitlement to service connection for sleep apnea; entitlement to a rating in excess of 70 percent for service-connected psychotic disorder; and entitlement to an effective date earlier than December 21, 2012, for the 70 percent rating for psychotic disorder. Of the three remanded claims, only the sleep apnea claim has been readjudicated by the RO and recertified to the Board. A Board decision addressing the remaining appealed issues will be issued at a later date, if necessary. A Board hearing was scheduled for March 1, 2018. No hearing was held. The Veteran's attorney appeared on the day of the hearing, informed the veterans law judge (VLJ) that the Veteran was unable to attend the hearing, and offered documents for submission into the record. The VLJ accepted the documents and did not convene a hearing. The documents have been added to the Veteran's claims folder. The Veteran has not requested a rescheduled hearing, and her request for a Board hearing is considered withdrawn. For reasons set out below, the Board has changed the issue on appeal to better reflect the Veteran's claims. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required on her part. REMAND In March 2018, documents were received by VA which included medical treatises addressing links between apnea and military service and psychiatric disorders. The evidence raises a theory of entitlement to service connection for apnea secondary to the service connected psychotic disorder not otherwise specified. A medical opinion is required to address this theory. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain, and associate with the record, any outstanding private or VA treatment records relating to the Veteran's sleep apnea. All efforts to obtain such records should be documented in the record. 2. Request an addendum opinion from the examiner who prepared the April 2017 VA examination report that addresses the following. If the examiner is not available, arrange to obtain the opinion from another suitably qualified health care professional. A re-examination of the Veteran should only be scheduled if the examiner determines this is necessary to provide the requested opinion. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea is caused or aggravated by service-connected disability, to include service-connected psychotic disorder not otherwise specified. "Aggravated" means permanently worsened beyond the normal progression of the disability. "At least as likely as not" means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. The Veteran's virtual claims folder must be made available to, and reviewed by, the examiner. A report should be prepared and associated with the Veteran's virtual claims folder. In reviewing the entire record, the examiner must consider the Veteran's July 2009 and May 2010 statements relating to the onset of her symptoms during service. The examiner must also address the relevancy of the medical literature submitted by the Veteran in March 2018. If there is a medical basis to support or doubt the Veteran's account of past and current symptoms, the examiner should provide an explanation. If the examiner determines that the Veteran's sleep apnea is at least as likely as not aggravated by service-connected disability, the examiner should quantify the degree of aggravation; the examiner should identify the baseline level of severity prior to the onset of the aggravation, or by the earliest medical evidence at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. The rationale for all opinions expressed must be provided. An explanation of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s) 3. After undertaking any additional development deemed appropriate, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and her representative should be provided with a supplemental statement of the case (SSOC) and the required opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The appellant and her representative 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 be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ G. A. Wasik 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).