Citation Nr: 1111131 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 09-39 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for sleep apnea. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty in the Army National Guard from January 1967 to May 1967 and from October 1990 to May 1991. See DD Form 214s. He also had periods of training both before and after those periods of active duty. See Veteran's personnel file. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the claim. The Board notes that the Veteran initially requested a hearing at a local VA office before a member of the Board. See October 2009 VA Form 9. This request was subsequently withdrawn in July 2010, prior to certification of his claim to the Board. Therefore, the Board will proceed accordingly. 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 The Veteran seeks entitlement to service connection for sleep apnea. He contends that he was discharged because of this condition and that sleep apnea was incurred during his last period of active duty (April 1, 1991) and/or aggravated during subsequent periods of inactive duty for training (INACDUTRA) or active duty for training (ACDUTRA), including ACDUTRA "at Fort Ord, California for three weeks at NTC." See May 2008 VA Form 21-526; February 2009 NOD; October 2009 VA Form 9. Review of the Veteran's service treatment records are devoid of reference to complaint of, or treatment for, any problems with sleep apnea during either period of active duty (January 1967 to May 1967; October 1990 to May 1991). The service treatment records do document that he was diagnosed with obstructive sleep apnea on January 6, 1998 following a sleep study. See record from Sleep Disorders Center. The Veteran's service personnel records also reveal that with the exception of the period of 1995-1996, the Veteran participated in periods of ACDUTRA as a member of the National Guard between September 1991 and March 2005, and that he was subsequently determined to be unfit for duty/deployment due to his sleep apnea and requiring a CPAP machine and was ultimately transferred to the retired Reserve effective October 31, 2005. See August 2005 record from the Departments of the Army and the Air Force; Request for Separation of Enlisted Soldier (Reserve). As sleep apnea is a disease, rather than an injury, the Board finds that the question of whether the Veteran was performing INACDUTRA at any point in time is immaterial as he can only be compensated for an injury incurred in the line of duty during a period of INACDUTRA. However, as was noted above, the Veteran's personnel records reflect that with the exception of the period of 1995-1996, the Veteran participated in periods of ACDUTRA each year between September 1991 and March 2005. In addition, the Board finds that the symptoms of sleep apnea that in part formed the basis for the January 1998 diagnosis are subject to lay observation. Consequently, the Board finds that the Veteran should be provided with an examination and opinion as to whether the Veteran's sleep apnea had its onset during his last period of active duty or if not, was incurred or permanently aggravated beyond its natural progress by any subsequent period of ACUDTRA between September 1991 and March 2005. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided an appropriate examination to determine the nature and etiology of his sleep apnea. The claims folder should be sent to the examiner for review in conjunction with the examination. The examiner is requested to indicate in the VA examination report if the Veteran's claims file was reviewed. All appropriate studies should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea had its onset during active service, or if not, was incurred or aggravated beyond its natural progress during any period of ACUDTRA between September 1991 and March 2005. The Veteran's dates of active service and ACDUTRA should be specified to the extent permitted by the Veteran's DD Form 214s and the April 2005 annual statement from the Army National Guard. A detailed rationale should be provided for all opinions offered. 2. The RO/AMC should read the medical opinions obtained to ensure that the remand directives have been accomplished, and should return the case to the examiner of all questions posed are not answered. 3. Finally, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2010). ____________________________________________ Michael J. Skaltsounis Acting 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) (2010).