Citation Nr: 1300612 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-27 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from October 1985 to August 2006. This matter comes to before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The issue of entitlement to service connection for obstructive ventilatory defect has been raised by the record, as reflected by the June 2011 Statement of Accredited Representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this claim, and it is therefore referred to the AOJ for appropriate action. In a November 2006 rating decision, the RO granted service connection for gout of the right and left first toes, and assigned a 20 percent evaluation, effective September 1, 2006. The RO also granted service connection for social phobia and thoracic spondylosis with lumbosacral degenerative disc disease, herniated nucleus pulposus, and levoscoliosis, evaluating both disabilities as 10 percent disabling, effective September 1, 2006. Finally, the RO granted service connection for right carpal tunnel syndrome and assigned a noncompensable rating, effective September 1, 2006. In September 2007, the Veteran filed a notice of disagreement with respect to the disability ratings awarded to the above-referenced disorders. A statement of the case was issued in October 2008, at which time the Decision Review Officer (DRO) increased the disability rating for the thoracic spondylosis with lumbosacral degenerative disc disease, herniated nucleus pulposus, and levoscoliosis to 40 percent, and further increased the disability rating for the service-connected psychiatric disorder to 30 percent. In a November 2008 Appeal Status Election form, the Veteran marked that he was satisfied with his appeal on all issues and that he wished to withdraw his appeal. As such, these issues have been withdrawn and are currently not on appeal before the Board. For the reasons set forth below, the current appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. 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 (2012). 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 (2012). The Veteran contends that he developed sleep apnea during his period of active service. See September 2009 claim. He asserts that he has experience symptoms since the problem first manifested in service. See June 2010 substantive appeal. A review of the Veteran's post-service medical records reflects an initial diagnosis of obstructive sleep apnea syndrome in April 2008. See April 2008 VA Sleep Study Consultation Report. Turning to the Veteran's service treatment records, the Board notes that he presented at a military treatment facility in April 1997 with complaints of shortness of breath of three weeks duration. During his appointment, he described associated pain and discomfort in his left shoulder and on the left side of his chest and stated that he was experiencing difficulty breathing. He was subsequently referred to the pulmonary clinic where he underwent a series of pulmonary function tests, the results of which were clear for any abnormalities. However, the Veteran was assessed with mild obstructive ventilatory defect. Remaining clinical records dated from April 1997 to June 1997 reflect on-going complaints of recurring episodes of shortness of breath. At his October 2001 retention examination, he reported a history of shortness of breath and noted that he had experienced periodic episodes of shortness of breath since 1996. In a May 2010 statement, the Veteran's wife, J.F., asserted that from the time she and the Veteran were married in February 1999, she had frequently observed his sleeping habits, as well as his symptoms of sleep apnea. J.F. described the Veteran's sleep patterns, to include episodes of loud snoring and daytime sleepiness, and noted that on a few occasions, the Veteran "appeared to stop breathing while laying on his back" leading her to wake him up to ensure he was alright. According to J.F., sometimes the Veteran would "stop breathing, wake up suddenly, and fall back asleep in a continuous cycle." Given the nature of the Veteran's condition, and its observable symptoms, the Board finds that he is competent to report that he developed sleep problems during service, and since his discharge from service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In addition, based on the evidence submitted and lay assertions provided in support of his claim, the Board finds him credible with respect to his assertions. For these reasons, the Board finds that a VA examination should be provided to determine the etiology of the currently diagnosed sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Veteran maintains that he was diagnosed with sleep apnea in January 2007, and that since his diagnosis he has received treatment for this condition at the VA Medical Center (VAMC) in Oklahoma City, Oklahoma. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). As this matter is being returned for further development, VA treatment records pertinent to the appeal and dated from January 2007 to April 2008, as well as the Veteran's updated VA treatment records since April 2010 should also be obtained upon remand. Accordingly, the case is REMANDED for the following action: 1. Request records referable to sleep apnea from the VAMC in Oklahoma City, Oklahoma, and the VA Outpatient Clinic in Lawton, Oklahoma, from January 2007 to April 2008 and since April 2010. Copies of any available records should be associated with the claims folder. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any sleep disorder present. The claims folder and a copy of this remand must be made available to, and reviewed by, the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner should specifically take into consideration the April 1997 service treatment report reflecting an assessment of obstructive ventilatory defect. Consideration should be given to the Veteran's history and particularly to any statements regarding continuity of symptoms since service. Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any current sleep disorder and provide diagnoses for all identified disabilities. The examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any sleep disorder had an onset in service (to include the in-service assessment of obstructive ventilatory defect) or is otherwise related to the Veteran's military service. In answering this question, the examiner should address the Veteran's competent assertions that he has experienced sleep problems since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since military service. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. After completing the above, readjudicate the issue on appeal. If any benefit sought on appeal is not granted, 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 before the case is returned to the Board. No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).