Citation Nr: 22018358 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-41 177 DATE: March 29, 2022 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1967 to March 1971 and from January 1981 to December 1992. The Veteran also served on active duty in the United States Air Force from July 1971 to June 1977. His awards include the Combat Action Ribbon. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matter in April 2019 and September 2021 for further development. Unfortunately, a remand is again warranted to further develop the Veteran's claim. Entitlement to service connection for sleep apnea is remanded. In the September 2021 remand, the Board directed the RO to obtain an addendum VA opinion as to the Veteran's claim of service connection for sleep apnea. In September 2021, after the Board remand, a VA physician opined that it was less likely than not that the Veteran's sleep apnea is related to his service. The examiner stated that there were no symptoms documented in the Veteran's service treatment records or documented by his physicians, himself, or his spouse suggesting that he had sleep apnea when he left service twenty years prior. However, the Board notes that the Veteran's service treatment records reflect that he experienced sleep issues in service. In a November 1988 Report of Medical History, the Veteran reported that he experienced frequent trouble sleeping. See Aug. 1994 STR Medical, p. 19. In a December 2021 Appellate Brief, the Veteran's representative noted that the physician failed to address the Veteran's in-service report of frequent trouble sleeping. See Dec. 2021 Appellate Brief, p. 7. The Board finds the September 2021 addendum opinion to be inadequate for adjudication purposes, as the physician stated that there were no documented symptoms of sleep issues in service, but the Veteran had reported frequent trouble sleeping in 1988 during active service. Accordingly, the claim must be remanded in order to obtain an adequate examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Also, the Board notes that the Veteran's medical records reflect that he has experienced sleep symptoms associated with his service-connected PTSD. Therefore, an opinion should also be obtained as to whether his sleep apnea is caused or aggravated by his service-connected PTSD. Moreover, an April 2017 SSA Inquiry suggests that the Veteran applied for Social Security Administration (SSA) disability benefits for unspecified disability. Any outstanding records pertaining to the Veteran's claim(s) for SSA benefits may be relevant to the issue on appeal. Hence, the AOJ should attempt to obtain any such relevant records upon remand. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Southern Arizona Health Care System and are dated to May 2020. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for sleep apnea, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for sleep apnea from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records from the VA Southern Arizona Health Care System for the period since May 2020; and all such relevant records from any other sufficiently identified VA facility. 3. Contact the SSA and request a copy of that agency's decision(s) for disability and/or supplemental security income benefits and all relevant records pertaining to the Veteran's claim(s). Document all requests for information as well as all responses in the claims file. 4. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is related to service or is caused or aggravated by his service-connected PTSD. The entire claims file, to include a complete copy of this REMAND, should be made available to the clinician designated to provide an opinion and the opinion should include a discussion of the Veteran's documented medical history and assertions. The clinician must address the following: Determine whether there is an approximately 50 percent chance that any sleep apnea experienced by the Veteran since approximately August 2012 (1) began during any period of active service; (2) is related to a disease or injury in service, including his reported trouble sleeping in November 1988; (3) is caused by service-connected PTSD; OR (4) is aggravated by service-connected PTSD. *The clinician must address all relevant lay and medical evidence of record, including but not limited to, the Veteran's report of frequent trouble sleeping in November 1988. See Aug. 1994 STR Medical, p. 19. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. (CONTINUED ON NEXT PAGE) The clinician must provide rationale for all proffered opinions. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.