Citation Nr: 21011967 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-21 958 DATE: March 3, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent prior to August 1, 2019 and in excess of 70 percent thereafter for persistent depressive disorder with post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected PTSD, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1984 to September 1987, with subsequent periods of service in the Reserves. The matters come before the Board of Veterans’ Appeals (Board) on appeal of a February 2018 rating decision. In his VA Form 9, the Veteran requested a videoconference hearing at his local VA office. See April 2018 VA Form 9; see also October 2019 VA Form 9. However, through his representative, the Veteran waived his right to a hearing and requested that the Board consider his October 2020 brief in lieu of a hearing. See October 2020 correspondence. There are no additional requests for a hearing of record. As such, the Board considers the Veteran’s request for a hearing satisfied. To the extent the Veteran indicated in his VA Form 9 that he disagreed with the effective date assigned for PTSD, the Board notes that the Veteran’s contention is essentially that he is entitled to a higher rating for his PTSD. Thus, the Board finds that there need not be a separate issue for adjudication of the effective date for the increase. The Board’s discussion below addresses the Veteran’s assertion that the increased rating was warranted “earlier” than when it was assigned inasmuch as the Board discusses whether the Veteran is entitled to a higher rating at any point pertinent to the appeal period. Entitlement to an initial rating in excess of 30 percent prior to August 1, 2019 and in excess of 70 percent thereafter for persistent depressive disorder with posttraumatic stress disorder is remanded. The Veteran contends that he witnessed three “man overboards” during flight operations aboard the USS Midway, one of which involved bloodied water at the fantail. He contends that they were fellow shipmates from other divisions/departments and that he does not know who they were. He also contends that he learned while still serving aboard the USS Midway that his very close friend committed suicide after discharge from the Navy and that he felt depressed and traumatized. See August 2017 VA Form 21-0781. The Regional Office (RO) has awarded a 30 percent rating effective August 25, 2017, and a 70 percent rating effective August 1, 2019. This date corresponds with an August 2019 VA examination report in which the VA examiner indicated that the Veteran’s disability manifested in occupational and social impairment with reduced reliability and productively as a result of his mental disabilities. During this examination, the Veteran reported that he has been in consistent treatment at the VA since 2015 and that he sees a psychiatrist once monthly and is prescribed medication. The Veteran further reported that he was seeing a psychologist and learned anger management techniques, but that treatment has ended, and he stopped group therapy and individual therapy due to not having enough time to attend. The record contains VA treatment records dated from April 2017 up to March 2018, but not thereafter. Additionally, the record does not include any treatment records indicating monthly psychiatric treatment. Given that the Veteran has identified records of VA care during an applicable time period under review, a remand is required to allow VA to obtain these records. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected PTSD, is remanded. The Veteran contends that his diagnosed obstructive sleep apnea (OSA) is secondary to his service-connected PTSD. See April 2018 VA Form 9. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on a claim for secondary service connection, the record must show (1) current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The record indicates that the Veteran has been diagnosed with OSA. See November 2016 Sleep Apnea Analysis; see also March 2018 Sleep Apnea Disability Benefits Questionnaire. Additionally, the Veteran has been awarded service connection for PTSD. Thus, the key issue in this case is whether there is medical evidence establishing a link between the current disability and his service-connected disability. The record indicates that the Veteran has reported sleep disturbances associated with his PTSD. See October 2017 and March 2018 VA treatment records. As there is no opinion of record addressing secondary service connection, remand is necessary to address this theory of entitlement. The matters are REMANDED for the following action: 1. Obtain and associate with the file the Veteran’s outstanding VA treatment records, to specifically include any psychiatric treatment. 2. Schedule the Veteran for a VA sleep apnea examination. The examiner should review the entire claims file and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should render the following opinions: (a) Is it at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran’s OSA is related to service? The VA examiner should address the May 2018 lay statement reflecting that the Veteran’s brother heard the Veteran snoring loudly and his breath stopping in September 1987. (b) Is it at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran’s OSA is proximately due to the Veteran’s service-connected PTSD? (c) Is it at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran’s OSA is worsened beyond its natural progression by his service-connected PTSD? In answering questions pertaining to aggravation, the examiner should fully explain from a medical perspective the conclusion reached. 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.