Citation Nr: 21070949 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 15-06 225 DATE: November 27, 2021 REMANDED Entitlement to service connection for sleep disability, to include sleep apnea and REM sleep behavior disorder, including as secondary to service-connected psychiatric disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to February 1968. This matter is on appeal before the Board of Veterans Appeals (Board) from a December 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, a Board hearing was held before the undersigned; a transcript of the hearing is of record. Entitlement to service connection for sleep apnea, to include sleep apnea and REM sleep behavior disorder, including as secondary to service-connected psychiatric disability, is remanded. The Veteran has essentially alleged that his current sleep apnea is either directly related to service and/or caused of aggravated by his service-connected psychiatric disability, characterized as recurrent major depressive disorder. The evidence indicates that the Veteran receives ongoing treatment for sleep apnea and REM sleep behavior disorder. See e.g. November 2013 VA psychiatric note, indicating that the Veteran's medical problems include sleep apnea treated with CPAP and June 2013 VA neurology consultation note showing evaluation and treatment for REM sleep behavior disorder and noting the Veteran's wife's reports of the behavioral manifestations of his sleep problems. However, VA treatment records associated with the claims file date only up to September 2014. Thus, as VA treatment records pertinent to a claim are constructively of record, a remand is required to obtain updated VA treatment records pertaining to the Veteran from September 2014 to the present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Also, the Veteran has not been afforded a VA examination to assess the likely etiology of his current sleep disability. A February 2015 disability benefits questionnaire shows a diagnosis of sleep apnea with treatment by CPAP but does not include any medical nexus opinion. In this regard, the June 2013 VA neurological consultation suggests that REM sleep behavior disorder could be related to the Veteran's service-connected psychiatric disability. Thus, on remand, a VA examination with accompanying medical opinions should be conducted to assess the likelihood that any current sleep disorder has been caused or aggravated by the Veteran's service-connected psychiatric disability. See e.g. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Also, at the September 2021 Board hearing, the Veteran's wife testified that soon after they were married in May 1968, she noticed that the Veteran snored a lot, would sometimes be out of breath during sleep and would fall asleep during the day watching television. As these symptoms could be suggestive of sleep apnea and have been reported as occurring so soon after service, on remand, the VA examiner should also assess the likelihood that any current sleep disorder is directly related to the Veteran's military service. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records dated from 2014 to the present. 2. Schedule the Veteran for a VA examination to assess the likely etiology of any current sleep disorder, to include sleep apnea and REM sleep behavior disorder. The examiner must review the claims file in conjunction with the examination. This review should include the Veteran's service treatment records; pertinent post-service VA treatment records, including an October 2009 finding of "rule out sleep apnea," a February 2010 notation that the Veteran had underwent a sleep study and been found to have sleep apnea, an August 2012 notation that the Veteran's sleep apnea was being treated with CPAP, a June 2013 neurological consultation evaluating the Veteran for REM sleep behavior disorder, and any other VA medical records deemed pertinent; a February 2015 VA disability benefits questionnaire pertaining to sleep apnea; the September 2021 Board hearing transcript; and any other information of record deemed pertinent. The examiner is then asked to provide a response to the following questions: A) Is it at least as likely as not that any current sleep disorder, to include sleep apnea and REM sleep behavior disorder, is directly related to service? B) Is it at least as likely as not that any current sleep disorder, to include sleep apnea and REM sleep behavior disorder, has been caused by the Veteran's service-connected psychiatric disability, including any medications taken for the psychiatric disability? C) Is it at least as likely as not that any current sleep disorder, to include sleep apnea and REM sleep behavior disorder, has been aggravated by the Veteran's service-connected psychiatric disability, including any medications taken for the psychiatric disability? If aggravation is found, the examiner should identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the service-connected disability. The examiner should explain the rationale for each opinion provided. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.