Citation Nr: 1736579	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-27 667A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a sleep disability, to include as secondary to service-connected disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

David Nelson, Counsel


INTRODUCTION

The Veteran served on active duty from August 1979 to July 1983 and from March 2003 to June 2005, to include service in Southwest Asia.  The Veteran also had additional periods of reserve service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  This case was most recently before the Board in April 2017.

In connection with this appeal, the Veteran testified at a hearing before the undersigned in November 2012.  A transcript of that hearing is of record.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In an effort to more adequately represent the Veteran's assertions concerning his sleep disability claim, the Board finds that the issue on appeal is more accurately characterized as now listed on the title page.  The Board notes that the Veteran's service-connected disabilities now include chronic kidney disease, limitation of motion of the left shoulder, posttraumatic stress disorder (PTSD), foot injuries, resection of the right clavicle, left foot hallux valgus, and a right shoulder scar.

In April 2017, the Board remanded this case for an addendum opinion regarding direct service connection and secondary aggravation of the Veteran's sleep disability by his PTSD. A May 2017 Disability Benefits Questionnaire (DBQ) opinion was obtained.  The Board finds the negative secondary aggravation opinion provided by the examiner is insufficient, as the rationale is essentially contradictory.  

The Veteran's assertions now include that his sleep apnea may be related to, or aggravated by any of his service-connected disabilities, in addition to his PTSD, as well as the medications used to treat the service-connected disabilities.  The Board finds that another addendum opinion is necessary prior to adjudicating the claim.

Accordingly, the case is REMANDED for the following actions:

1.  Return the claims file to the examiner who provided the May 2017 opinion, or if not available, to another examiner.  If an opinion cannot be provided without an examination, one should be provided.  The examiner should provide opinions as to the following questions:

Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's sleep disability is caused by any of the Veteran's service-connected disabilities, to include the medications used to treat any of the service-connected disabilities.    

Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's sleep disability was aggravated by any of the Veteran's service-connected disabilities, to include the medications used to treat any of the service-connected disabilities.

In addressing the effect, if any, that medications used to treat the Veteran's service-connected disabilities have on his sleep disability, the examiner is asked to comment upon the medical literature referenced in the representative's August 2017 written brief presentation.

If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation.

Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

2.  Upon completion of the above, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond.  The case should be returned to the Board for further appellate consideration, as appropriate.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
A.M. CLARK
Acting Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).



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