Citation Nr: 1237794 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-24-270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for obstructive sleep apnea-hypopnea syndrome. REPRESENTATION Veteran represented by: James G. Fausone, Attorney At Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Anna-Lisa Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the Veteran requested a videoconference hearing in his June 2010 substantive appeal. However, in July 2010, he withdrew that request and instead asked for a RO hearing before a Decision Review Officer (DRO). In November 2010, the Veteran testified before a DRO, and a transcript of that hearing is of record. As such, there is no outstanding request for a hearing before the Board. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the veteran if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran has not been afforded a VA examination in connection with his claim for service connection for obstructive sleep apnea-hypopnea syndrome. His service treatment records do not indicate that he had sleep apnea in service. Nonetheless, he has asserted that his sleep apnea began during his military service. In support of this claim, he has submitted private medical records, oral testimony, and written statements, including a statement from V.M. (initials used to protect the Veteran's privacy), who was married to the Veteran during service. V.M. stated that the Veteran had trouble sleeping throughout the night and would stop breathing. The Veteran also testified at his November 2010 hearing that he began experiencing difficulty sleeping in the late 1990s, which worsened over the remainder of his military service. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to observable symptoms and manifestations of a disorder. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A Veteran can attest to factual matters of which he or she had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, post-service medical records do show that the Veteran has been diagnosed with obstructive sleep apnea-hypopnea syndrome. The United States Court of Appeals for Veterans Claims (Court) has held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4)(i). Therefore, the Board finds that a VA examination and medical opinion are necessary for determining the nature and etiology of any obstructive sleep apnea-hypopnea syndrome that may be present. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, lay statements, and assertions. The examiner should opine whether it is at least as likely as not that the Veteran currently has sleep apnea that manifested in service or that is otherwise causally or etiologically related to his military service. In rendering his or her opinion, the examiner should note the lay statements attesting to the Veteran's sleeping problems during his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. The RO should ensure that there has been compliance with the directives of this remand and conduct any other development that may be indicated. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 Supp. 2011). _________________________________________________ JESSICA J. WILLS 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) (2011).