Citation Nr: 21007578 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 190506-8841 DATE: February 10, 2021 REMANDED The claim for service connection for bilateral hearing loss is remanded. The claim for service connection for sleep apnea is remanded. The claim for service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active duty from August 1984 to February 1988. A March 2019 rating decision denied service connection for bilateral hearing loss, sleep apnea and PTSD. This decision was issued after the Veterans Appeals Improvement and Modernization Act (AMA) took effect. The Veteran timely filed an appeal (Form 10182) to the Board which was received in May 2019, selecting Direct Evidence Review docket. An October 2019 Board decision again denied service connection for bilateral hearing loss, sleep apnea and PTSD, to which the Veteran appealed to the United States Court of Appeals for Veterans Claims (the “Court”). In September 2020, the Court vacated the October 2019 Board decision and remanded the issue for action consistent with a Joint Motion for Remand (JMR). In the JMR, parties agreed that (1) the VA failed to provide affirmative notice provide affirmative notice identifying the evidence needed to substantiate the claims and who shall be responsible for providing such evidence (VCAA notice), (2) the Board failed to consider a favorable private medical opinion dated October 2018 (contained in a 11/02/2018 document entitled “Medical Treatment Record – Non-Government Facility), and (3) the Board did not provide an adequate reasons and bases on whether a VA examination on PTSD is warranted. The October 2018 private medical opinion (contained in a 11/02/2018 document entitled “Medical Treatment Record – Non-Government Facility) indicated a possible diagnosis of PTSD and positive nexus opinion. As such, a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). The October 2018 private medical opinion (contained in a 11/02/2018 document entitled “Medical Treatment Record – Non-Government Facility) indicated that the Veteran’s sleep apnea was likely secondary to his PTSD. A March 2019 VA examination also diagnosed the Veteran with sleep apnea, but the examiner only opined on direct service connection, and did not opine on secondary service connection. As such, further development is warranted. The Board notes that additional evidence has been added to the file since the record closed. That evidence may not be considered by the Board in the adjudication of this appeal, but the Veteran may file a supplemental claim. Therefore, the matters are REMANDED for the following actions: 1. Provide a VCAA notice to the Veteran regarding the three service connection claims for bilateral hearing loss, sleep apnea and PTSD. 2. Schedule the Veteran for a VA psychiatric examination with a VA psychiatrist or psychologist (or a psychiatrist or psychologist that VA has contracted with). The examiner should diagnose any current acquired psychiatric disability, to include PTSD. (a) If an acquired psychiatric disability (other than PTSD) is diagnosed, the examiner should opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s acquired psychiatric disability either began during or was otherwise caused by his military service. (b) If PTSD is diagnosed, the examiner should identify the stressor or stressors used to support the diagnosis. (c) If no acquired psychiatric disability is diagnosed, the examiner should explain why not? In doing the above, the examiner should discuss the private medical opinion dated October 2018 (contained in a 11/02/2018 document entitled “Medical Treatment Record – Non-Government Facility), which indicated a possible PTSD diagnosis and positive nexus with the Veteran’s service. 3. Obtain a medical opinion to address the etiology of the Veteran’s sleep apnea, the examiner should answer the following questions: (a) Is it at least as likely as not (50 percent or greater) that the Veteran’s sleep apnea either began during or was otherwise caused by his military service? Why or why not? (b) Is it at least as likely as not (50 percent or greater) that the Veteran’s sleep apnea was caused or aggravated by any psychiatric conditions (to include PTSD) ? Why or why not? In doing the above, the examiner should discuss the private medical opinion dated October 2018 (contained in a 11/02/2018 document entitled “Medical Treatment Record – Non-Government Facility), which indicated that the Veteran’s sleep apnea was secondary to his PTSD. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.