Citation Nr: 1300290 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-32 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a sleep disorder to include sleep apnea. REPRESENTATION Appellant (Veteran) represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had verified active duty between October 1979 and March 1980, January 1981 and June 1988, and November 1990 and June 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In January 2012, the Veteran testified at a Board hearing, a transcript of which is of record. The Board has reviewed the entire record to include the Veteran's virtual VA claims file. No additional evidence has been included in the claims file since a June 2011 supplemental statement of the case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND VA and private medical evidence of record indicates that the Veteran has been diagnosed with, and treated for, obstructive sleep apnea. The Veteran contends he incurred his sleep disorder during active service in the early 1990s. Evidence of record also indicates that a sleep disorder may be secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD). The Board notes that, in a December 2002 rating decision, the Veteran was service connected for PTSD with depression, "also claimed as nightmares, stress, sleep." 38 C.F.R. §§ 3.303, 3.310 (2012). The Veteran's service treatment records (STRs) contain no evidence indicating complaints, treatment, or diagnoses of a sleep disorder. Rather, April 1991 reports of medical examination and history are negative for a sleep disorder, as is a May 1991 Southwest Asia Demobilization/ReDeployment Medical Evaluation report. Nevertheless, lay evidence indicates onset of a sleep disorder during active service, or as a result of PTSD. The Veteran specifically asserted during his January 2012 Board hearing that he experienced onset of his sleep disorder during active service in the early 1990s. He also made assertions during the hearing that indicate that the disorder may relate to PTSD. Though a layperson, the Veteran is competent to report a history of in-service sleep problems that fall within the realm of his experience. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Based on this evidence, the Board finds that a VA compensation examination should be provided to the Veteran. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran pursuant to 38 C.F.R. § 3.159 concerning how he can substantiate a claim to service connection on a secondary basis. 38 C.F.R. § 3.310. 2. Attempt to obtain and associate with the claims folder VA medical records pertaining to any treatment the Veteran may have received for his sleep disorder, dated since May 2011. 3. Schedule the Veteran for the appropriate VA exam to answer the following questions. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. The examiner is asked to provide opinions as to the following: a. whether it is at least as likely as not that the currently diagnosed sleep disorder is related to any in-service disease, event, or injury. b. whether it is at least as likely as not that any current sleep disorder was caused by the Veteran's service-connected PTSD, or has been aggravated (increased in severity beyond the natural course of the disability) by the PTSD. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Please note that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If the question posed is not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 5. After all the above development has been completed, readjudicate the claim on appeal in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue, and afforded a reasonable period of time within which to respond thereto. 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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) (2012).