Citation Nr: 0811917 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-10 812A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a sleep disorder, including as secondary to service-connected headaches. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from June 1981 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The veteran contends that his sleep disorder is secondary to service-connected headaches. While service medical records are silent for any complaints of a sleep disorder, the record shows that the veteran currently has severe obstructive sleep apnea syndrome. On remand, he should be afforded an examination to determine if his current sleep disorder is related to service or service-connected headaches. When aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). The examiner should, thus, also address whether the veteran's sleep disorder permanently worsened or was aggravated as a result of his service- connected headaches. Additionally, the veteran submitted additional medical evidence in November 2006. There is no indication of waiver of RO jurisdiction. To ensure that the veteran's procedural rights are protected, insofar as he is afforded the opportunity for RO adjudication in the first instance, the Board must return the case to the RO, with the new evidence, for its initial consideration. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for an examination for his sleep disorder. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must indicate in the examination report that the claims file was reviewed in conjunction with the examination. For any sleep disorder found, the examiner should opine whether there is a 50 percent probability or greater that it is related to service or the veteran's service-connected headaches. If not, the examiner should indicate whether the sleep disorder has undergone any permanent increase in severity due to the service-connected headaches, and if so, specify the degree of increase in severity over and above the preexisting base line of disability. The examiner should provide the rationale for the opinion provided. If the requested opinion cannot be rendered without resort to speculation, the examiner should so state. 2. Thereafter, the RO should readjudicate the issue of service connection for a sleep disorder, including consideration of all evidence received since the February 2006 Statement of the Case. All applicable laws and regulations should be considered. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant 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 Supp. 2007). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).