Citation Nr: 21022363 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 19-20 974 DATE: April 15, 2021 REMANDED Entitlement to service connection for sleep apnea, as secondary to his service-connected psychiatric disability, to include as due to the medications taken for his service-connected psychiatric disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1979 to August 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2020 Board decision, the Board denied the Veteran’s claim of entitlement to service connection for a sleep apnea disability. The Veteran appealed the denial to the Court of Appeals for Veteran’s Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR), in which the Parties agreed that the Board erred when it failed to address whether the evidence of record raised a theory of secondary service connection. 38 C.F.R. § 3.310 (a). The Parties noted that there is evidence that the Veteran’s psychiatric medications “may alter sleep architecture” and that he should reconsider taking his “SSRI’s, benzodiazepines, and other psychotropic drugs” of which the Board did not address. See February 2017 Sleep Medicine Note. The JMPR required the Board to consider whether a theory of service connection for the Veteran’s sleep apnea as secondary to the medications taken for his service-connected psychiatric disability was reasonably raised by the evidence. In light of the above, the Board finds that remand is warranted for further action consistent with the terms of the JMPR. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Entitlement to service connection for sleep apnea, as secondary to his service-connected psychiatric disability, to include as due to the medications taken for his service-connected psychiatric disability, is remanded. The Board notes that the diagnosis of sleep apnea was confirmed in the February 2017 sleep study and the Veteran has been awarded service connection for mood disorder associated with left knee degenerative joint disease since March 13, 2012. A review of the record reflects a March 2012 letter written by the Veteran’s private doctor, Dr. N.V., opining that the Veteran presents with depressed mood with alteration in his sleep and eating patterns and that it is as least as likely as not that his mentioned problems are service-connected, including his nervous problem secondary to his musculoskeletal problems. During a July 2013 VA mental disorder examination, the examiner noted that the Veteran experiencing difficulty initiating and maintaining sleep and noted a symptom of chronic sleep impairment. The Boards finds that in further action consistent with the November 2020 JMPR, and in light of the evidence above, a theory of service connection for the Veteran’s sleep apnea as secondary to his service connected psychiatric disability, to include as due to the medications taken for his service-connected psychiatric disability, has been reasonably raised by the evidence. The record does not reflect that the Veteran has been afforded an examination to determine whether there exists a link between his disability. Hence, the record is absent of an opinion regarding whether there exists a link between the Veteran’s sleep apnea and psychiatric disability. VA is required to obtain an opinion when there is insufficient medical evidence to decide the claim, but the record otherwise contains competent evidence of a disability, evidence of an in-service event, and evidence of an indication of a nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Additionally, a disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Hence, consistent with the direction of the November 2020 JMPR, remand is warranted to develop the issue. The matter is REMANDED for the following action: 1. Obtain any outstanding treatment records in accordance with 38 C.FR.§ 3.159 and associate those records with the claims file. The Veteran must be given notice, an opportunity to respond to, and the opportunity to submit additional argument and evidence. 2. After the above development is complete, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his sleep apnea disability. An in-person examination may be scheduled if the examiner deems it necessary or may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner must opine as to whether the Veteran’s sleep apnea disability is: a. At least as likely as not related to his service; and b. At least as likely as not proximately due to or aggravated by his service-connected psychiatric disability, to include as due to the medications taken for his service-connected psychiatric disability. The examiner is asked to address the relevant lay statements and the medical evidence, including the July 2013 VA mental disorder examination noting of the Veteran experiencing difficulty initiating and maintaining sleep and noted symptom of chronic sleep impairment, the March 2012 letter written by Dr. N.V. opining that the Veteran presents with depressed mood with alteration in his sleep pattern and that it is as least as likely as not that his mentioned problems are service-connected, including his nervous problem secondary to his musculoskeletal problems, and the February 2017 sleep study in which the examiner noted to reconsider medications that may alter sleep architecture such as SSRI's, benzodiazepines and other psychotropic drugs. A complete rationale for all opinions is requested. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.