Citation Nr: 0813622 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-16 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected broken nose with deviated nasal septum. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from July 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) from an October 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for sleep apnea and a broken nose. The Board remanded the claim in July 2007. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Additional development is needed prior to further disposition of the claim. In July 2007, the Board remanded the claim for the purpose of obtaining an opinion regarding the etiology of the veteran's obstructive sleep apnea. The record reflects that in August 2007 the AMC informed the veteran that he would be scheduled for an examination at his local VA medical facility. He was further informed that the VA medical facility would notify him as of the date, time, and place of the examination. The record also reflects that in August 2007 the Alexandria, Louisiana VA medical facility requested that the veteran be scheduled for the examination. The record does not, however, reflect that the examination was scheduled, that the veteran was notified of the scheduling of the examination, or that the examination was conducted. Nor does the record reflect that the veteran failed to appear for the examination. Because it is unclear whether the veteran was scheduled for an examination in connection with this claim, the Board finds that a remand is necessary. On remand, it should be determined whether the examination requested in August 2007 was scheduled, and whether the examination was conducted. If the examination was conducted, the associated report of examination should be obtained and associated with the claims file. If the examination was not conducted, it should be determined whether the veteran failed to report for the examination. If the veteran failed to report for the examination, given that the record does not reflect that the veteran was notified of the scheduling of any examination, he should be scheduled for an additional examination for the purpose of obtaining an opinion as to the etiology of his obstructive sleep apnea. Accordingly, the case is REMANDED for the following actions: 1. Determine whether the examination requested in August 2007 was scheduled, and whether the examination was conducted. If the examination was conducted, obtain the associated report of examination and associate it with the claims file. 2. If the examination was not conducted, schedule the veteran for an examination by an appropriate examiner to determine the nature, extent and etiology of any obstructive sleep disorder that may be present. The claims file must be made available to the examiner, and the examiner must state in the report of examination that the claims file was reviewed in conjunction with the examination. Following a review of the relevant medical evidence in the claims file; the medical history of a pre-service broken nose, breathing problems and rhinoplasty; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current obstructive sleep apnea is causally related to the veteran's service-connected broken nose and deviated nasal septum (that is, the in-service nasal fracture). The examiner should also comment as to whether it is at least as likely as not (50 percent probability or greater) that the obstructive sleep apnea is causally related to the veteran's history of fracturing the nose at age 10. Finally, the examiner should comment as to whether it is at least as likely as not (50 percent probability or greater) that the in-service nose fracture permanently worsened, or aggravated any obstructive sleep apnea that might have existed notwithstanding the in-service fracture. The rationale for all opinions must be provided. 3. Then, readjudicate the claim. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the appropriate time fore response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Harvey P. Roberts 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).