Citation Nr: A25035015 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241009-482804 DATE: April 16, 2025 REMANDED Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for sleep apnea as secondary to PTSD is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2004 to June 2008. This appeal comes to the Board of Veterans' Appeals (Board) under the Appeals Modernization Act (AMA) review system. Following a January 2024 VA Form 20-0996, Decision Review Request - Higher Level Review (HLR), the agency of original jurisdiction (AOJ) in May 2024, found that there had been a pre-decisional duty to assist in obtaining evidence and after completing development issued the September 2024 rating decision on appeal. Any evidence previously submitted to the AOJ or associated with the claims file while the record was closed became part of the evidentiary record to be considered upon readjudication. 38 C.F.R. § 3.103 (c) (2) (ii). The Veteran appealed the September 2024 rating decision by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)) in October 2024. He elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. VA regulations require that the Board contact an appellant and request clarification if the Board cannot identify which review option an appellant intends to select. See 38 C.F.R. § 20.202 (f). An NOD may be unclear if an appellant attaches evidence to an NOD indicating that the appellant is seeking Direct Review, as evidence submitted along with an NOD may not be considered by the Board under that review option. See Edwards v. McDonough, 36 Vet. App. 56 (2023). The Veteran included a brief to his NOD, setting forth argument as to how the AOJ erred by denying a higher rating for PTSD. These contentions are posited as errors of application of the law and are properly before the Board, as they are not new evidence. The present situation arguably does not appear to be affected by the Court's decision in Edwards v. McDonough, 36 Vet. App. 56 (2023). Nevertheless, the Board provided notice to the Veteran on October 30, 2024, that the "evidence" in question could not be considered. He was also advised that if he wanted the Board to consider any additional evidence for the issue listed on his VA Form 10182, he must change his Board appeal request by switching AMA dockets (to Evidence Submission or Hearing), as explained in the correspondence, and that, if his request was approved, he would then have the opportunity to submit any additional evidence he wants the Board to consider. No response to this letter was received. The Board acknowledges the decision by the United States Court of Appeals for Veterans Claims (Court) in Williams v. McDonough, 37?Vet. App.?305. In Williams v. McDonough, the Court held the Board must refrain from deciding a case until the case proceeds to the point where a docket switch is no longer permitted under the terms of 38 C.F.R. § 20.202 (c) (2). Additionally, in the October 2024 brief, accompanying the NOD, the Veteran's representative stated that he wished to waive the Veteran's statutory right to further development of his claim, to include obtaining additional VA examinations. The Board interprets the Veteran's argument as reflecting an intent to have this matter reviewed in an expeditious manner, which the Board finds to be an implicit waiver of the Veteran's right to change Board dockets under Williams v. McDonough, 37?Vet. App.?305 (2024). Regardless, the Board is remanding the appeal for additional development, therefore, there is no prejudice to the Veteran in proceeding. The Veteran is also found to have not waived an incomplete evidentiary record. The pre-decisional duty to assist error identified, below, has resulted in an insufficient record for a decision. VA remains bound by the duty to assist the Veteran and finds that remand is warranted for the pre-decisional duty to assist error identified below. The Board further observes that waiver of the right to additional assistance under the duty to assist does not compel the Board to issue a decision if development of the record is incomplete. See, e.g., Clark v. McDonough, 35 Vet. App. 317 (2022) (non-precedential decision) (dismissing appeal of Board remand, where appellant purported to waive duty to assist and requested a final Board decision); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Consequently, the Board finds that VA remains bound ineluctably by the duty to assist the Veteran in this matter as in other matters. 1. Entitlement to an Increased Rating in Excess of 70 Percent for PTSD A remand is necessary to correct a pre-decisional duty to assist error. See 38 C.F.R. § 20.802. Here, the AOJ failed to obtain relevant private treatment records. See 38 C.F.R. §§ 3.159 (c) (1). Regarding the missing private treatment records, during his September 2024 VA review PTSD examination, the Veteran reported that he was engaged in psychiatric treatment "via EAP," and that he is participating in psychotherapy. This treatment was reasonably raised in September 2024, prior to the September 2024 AOJ decision on appeal. The AOJ's failure to obtain these records constitutes a pre-decisional error in satisfying the duty to assist the Veteran in developing his claim. 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159, 20.802. Thus, on remand, the AOJ should make reasonable efforts to obtain the private treatment records referenced in the September 2024 VA review PTSD examination report. 38 C.F.R. § 20.802 (a). The Board acknowledges that the Veteran submitted a private review PTSD examination report and private medical opinion dated August 2023, which provided the opinion that the Veteran's current psychiatric condition and level of functioning matches that of a 100 percent rating. There is no discussion of the frequency, severity, and duration of such psychiatric symptoms. Further, while a review of the Veteran's medical record was noted, there was no actual discussion of the evidence/findings that the examiner considered in making his opinion. Such lends further support as to why obtaining the Veteran's complete private and VA medical records. 2. Entitlement to Service Connection for Sleep Apnea as Secondary to PTSD The Board has an obligation to discuss all theories of entitlement reasonably raised by the evidence of record. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). This obligation includes developing unstated claims for secondary service connection during the adjudication of increased rating claims for separate disabilities where such is logically related to the claimed primary disability on appeal and reasonably raised by the record. Wilson v. McDonough, 35 Vet. App. 103 (2022); Bailey v. Wilkie, 22 Vet. App. 188, 203 (2021). In the August 2023 private medical opinion, it was noted the Veteran "may suffer from border-line sleep apnea, secondary to his PTSD condition." The Board finds that the issue of entitlement to service connection for sleep apnea as secondary to PTSD has been reasonably raised by the evidence of record as part of the claim on appeal for an increased PTSD disability rating. See Wilson, 35 Vet. App. 103; Bailey, 22 Vet. App. at 203. This issue was reasonably raised in August 2023, prior to the September 2024 AOJ decision on appeal. The AOJ's failure to develop and adjudicate the issue constitutes a pre-decisional error in satisfying the duty to assist the Veteran in developing his claim. 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159, 20.802. Accordingly, this issue should be remanded in order for the AOJ to assist the Veteran in developing his claim for sleep apnea as secondary to PTSD. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding private treatment records relating to the Veteran's PTSD disability. The AOJ's attention is directed to references made by the Veteran during his September 2024 VA review PTSD examination, wherein the Veteran reported that he was engaged in psychiatric treatment "via EAP," and that he is participating in psychotherapy. 2. Conduct all development necessary to assist the Veteran in developing his claim of entitlement to service connection for sleep apnea as secondary to PTSD, including, but not limited to, furnishing the Veteran with all appropriate forms and obtaining any necessary records. 3. Then, adjudicate the issue of entitlement to service connection for sleep apnea as secondary to PTSD. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.