Citation Nr: 20009930 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-04 279 DATE: February 6, 2020 REMANDED The claim of entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and major depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1989 to August 1992, to include service in Southeast Asia. This appeal before the Board of Veterans’ Appeals (Board) arose from a November 2013 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for sleep apnea. The Veteran filed a notice of disagreement (NOD) in July 2014. A statement of the case (SOC) was issued in December 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in December 2015. A supplemental statement of the case (SSOC) was issued in August 2016. In February 2019, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Following the hearing, the record was held open for 90 days for the submission of additional evidence. In April 2019, a letter from Dr. T.Y., the Veteran’s psychiatrist at the Baton Rouge VA South facility, was received, along with a waiver of initial agency of original jurisdiction (AOJ) consideration of the evidence. The Board’s review of the claims file reveals that further AOJ action on the claim on appeal, prior to appellate consideration, is warranted. The Veteran has alleged that his sleep may have begun in service, as he was “constantly on the move” and “very sleep deprived” while serving in Operation Desert Storm and stationed in Saudi Arabia. See February 2019 Hearing Transcript at 3. Alternatively, he has contended that his sleep apnea is secondary to service-connected PTSD and major depression. Id. at 6-7. As for the matter of secondary service connection, the Board notes that secondary service connection may be granted not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(a), (b). In connection with this claim, the Veteran underwent VA examination in November 2013. In addressing the secondary theory of entitlement, the November 2013 VA examiner opined that the Veteran’s sleep apnea was not caused by his service-connected PTSD because sleep apnea there is “no medically acceptable documentation that PTSD causes sleep apnea.” However, the VA clinician failed to address the aggravation aspect of the theory of secondary service connection. Id.; El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Moreover, the record does not include any other medical opinion that explicitly addresses aggravation. Notably, Dr. T.Y. opined only that the Veteran’s sleep apnea is more likely than not, related to the Veteran’s “time and service with the service connected PTSD.” Under these circumstances, the Board finds a remand of this matter to obtain medical etiology opinions addressing both causation and aggravation is needed to resolve this claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes action to provide an examination or obtain a medical opinion, it must ensure that one is provided or obtained that is adequate for purposes of the determination being made). Prior to accomplishing action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. The matter is hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, to include any private (non-VA) treatment record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran’s response has expired, arrange to obtain, from an appropriate VA physician and addendum opinion that addresses the relationship, if any, between the Veteran’s sleep apnea and his service-connected PTSD and major depression. The contents of the entire claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum should include discussion of the Veteran’s documented history and lay assertions. Following review of the claims file, the physician should provide opinion, consistent with sound medical judgement, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea (a) was caused, or (b) is or has been aggravated (worsened beyond natural progression) by the Veteran’s service-connected PTSD and major depression. Both causation and aggravation must be addressed. If aggravation is found, the physician should attempt to quantify the degree of additional disability resulting from aggravation, to include by identifying, to the extent possible, the baseline level of the disability prior to aggravation. Complete, clearly-stated rationale for the conclusions reached must be provided. 4. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any other actions deemed warranted, adjudicate the service connection claim on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential7 and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.