Citation Nr: 21003076 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-31 171 DATE: January 19, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for hepatitis is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1967 to November 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claims of service connection for sleep apnea and hepatitis. In June 2018, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In August 2018, the Board remanded the claims for further development, to include VA opinions. Regrettably, another remand is necessary to comply with the August 2018 Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for obstructive sleep apnea The Veteran contends that his obstructive sleep apnea is related to his service-connected PTSD. In March 2019 and August 2019 opinions, the VA physician found that it was less likely than not that the Veteran’s obstructive sleep apnea was incurred in service or had its onset in service, and that it was less likely than not that the Veteran’s obstructive sleep apnea was proximately due to or the result of the Veteran’s PTSD. The physician reasoned that there was no chronicity of symptoms of obstructive sleep apnea since separating from service in 1969. There was also no objective evidence of sleep apnea in service or within a 10 year span of separating from service. The physician also reasoned that there was no medical documentation supporting the claim that PTSD causes obstructive sleep apnea as obstructive sleep apnea is due to a physical obstruction in the airway. Furthermore, review of the Veteran’s mental health notes clearly documented that he was able to sleep through the night with occasional nightmares. In June 2020, the Veteran’s attorney submitted medical literature that he argued showed that mental health conditions, including PTSD, may cause or aggravate sleep apnea. As a VA examiner has not had an opportunity to review this newly submitted medical literature, a remand is warranted for an opinion as to whether the Veteran’s obstructive sleep apnea is caused or aggravated by his service-connected PTSD. Entitlement to service connection for hepatitis The Veteran contends that his hepatitis B is related to service, to include as due to shots he received as a result of his service in Vietnam. In a November 2017 VA examination report, a VA physician’s assistant (PA) found that the Veteran did not have a diagnosis of hepatitis B, just the exposure which he found resulted in his body clearing the virus completely. He opined that it was less likely that the Veteran had a diagnosis of hepatitis incurred in or caused by venereal disease during service. Additionally, the PA reported that he could not determine whether the Veteran was infected with hepatitis B while in the military. The PA did not, however, address other types of hepatitis. A VA physician found in March 2019 that the Veteran did not have any active liver pathology and did not have active hepatitis B at the time of the opinion. He was exposed to hepatitis B at some point in his life, but he cleared it. The physician could not say the Veteran had hepatitis B during the military or after without resorting to mere speculation. In August 2019, in response to the Board remand directive stating that the physician should identify all hepatitis diagnoses that have existed since approximately June 2012, the date of the claim of service connection for hepatitis, a VA physician found the Veteran had acute hepatitis B that had resolved. This Veteran did not have a chronic hepatitis infection as he did not need medications. The physician thus found the Veteran did not have hepatitis B. It was therefore less likely than not that he had any liver condition related to or that had its onset during service. The March 2019 and August 2019 VA opinions did not comply with the August 2018 Board remand directive to identify all hepatitis diagnoses that have existed since approximately the June 2012 claim of service connection for hepatitis. The VA physician noted in the March 2019 opinion that the Veteran did not have active hepatitis at the time of the opinion, but could not say whether the Veteran had hepatitis B in the military or after without resorting to mere speculation. In the August 2019 opinion, the same VA physician found that the Veteran’s acute hepatitis B had resolved. However, while the opinions indicated the Veteran had hepatitis B diagnoses that had resolved, neither of these opinions specifically indicated whether the Veteran has had any hepatitis diagnoses since the approximate June 2012 claim. Thus, a remand is warranted for another opinion to comply with the August 2018 Board remand directives to identify all hepatitis diagnoses that have existed since approximately June 2012, the date of the claim of service connection for this disability. Stegall, 11 Vet. App. at 268; Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim”). Accordingly, the matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate physician to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s obstructive sleep apnea was either (a) caused or (b) aggravated by the Veteran’s service-connected PTSD. The physician should specifically consider the medical literature submitted in June 2020 that is now part of the evidentiary record. If aggravation is found, the physician should identify to the extent possible the baseline level of the disability prior to the aggravation.   The claims file should be provided to and reviewed by the physician. A complete rationale should accompany any opinion provided.       2. An appropriate specialist physician should identify all hepatitis diagnoses that have existed since approximately June 2012, the date of the claim of service connection for hepatitis. Obtain a medical opinion from an appropriate specialist physician to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hepatitis is related to service. The claims file should be provided to and reviewed by the physician. A complete rationale should accompany any opinion provided.      Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.