Citation Nr: 18160484
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 14-10 343
DATE:	December 26, 2018
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 from July 1964 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 
This matter was previously before the Board in February 2016, wherein the Board remanded the issue for further development, to include scheduling the Veteran for a VA examination. 
The Veteran testified before the undersigned Veterans Law Judge during a September 2015 hearing. A transcript of the hearing is associated with the Veteran’s claim file.
The Veteran seeks service connection for sleep apnea, contending that his sleep apnea had an onset in service, is related to service, or is secondary to his service-connected PTSD. 
Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See U.S.C. § 5103A; 38 C.F.R. § 3.159(c).
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.
A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App 439 (1995).
The Veteran has a current diagnosis of sleep apnea. Service treatment records are silent for complaints or findings of any sleep-related conditions, to include sleep apnea. The Veteran testified that he had a hard time sleeping during active duty due to hearing things such as helicopters, jets, and bombs going off in the distance, and therefore, caused him to wake up during the night. He also reported that his PTSD makes him restless and contributes to his problem more than anything. See September 2015 Hearing Testimony. As such, the question remaining is whether there is a nexus, or link, between the current diagnosis of obstructive sleep apnea and the Veteran’s service or the Veteran’s service-connected PTSD.
As such, a remand is necessary to determine the nature of the Veteran's sleep apnea. 
Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, and 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655(a). 38 C.F.R. § 3.655(b) holds that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.
The Board notes that the Veteran previously failed to attend a VA examination for his sleep apnea in September 2016. The Veteran’s representative submitted a statement in October 2018 which stated that the Veteran missed the examination because he was not properly notified of the scheduling of the VA examination. The Veteran’s representative further argues that the Veteran’s claim file only indicates that a VA letter stating that he is to report for a VA examination is of record, but not the letter of the actual scheduled VA examination. Although the Veteran’s reason for missing the examination does not necessarily qualify under the good cause exception, the Veteran has indicated that he is willing to report to the VA examination. Thus, VA will afford him another opportunity to attend an examination. 
Nevertheless, the Veteran is reminded that the duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
The matter is REMANDED for the following action:
1. Obtain additional VA medical treatment records from May 2017 to present.
2. After completing the above development, arrange for a VA examination with a medical opinion to address the claim for service connection for sleep apnea.  The decision for an in-person examination of the Veteran is left to the discretion of the examiner.  The Veteran’s record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: 
Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has sleep apnea that 
a) had an onset in service; 
b) is otherwise related to service; or 
c) is related to or aggravated (made permanently worse beyond the natural progression of the disease) by the service-connected PTSD? 
The examiner should comment on the above and set forth the complete rationale for all opinions. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present.
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Kim, Associate Counsel

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