Citation Nr: 1308060 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 07-26 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to November 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). In June 2008, the Veteran testified at a travel board hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. At the hearing, the Veteran waived initial RO consideration of the new evidence submitted in conjunction with the hearing. 38 C.F.R. § 20.1304 (c) (2012). In March 2009, the Board remanded the Veteran's claim for additional development and adjudicative action. The case was returned to the Board for further appellate review. In January 2011, the Board denied the Veteran's claim for service connection for obstructive sleep apnea. The Veteran appealed the Board's January 2011 decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated June 2012, the Court granted a Joint Motion for Remand, vacated the January 2011 Board decision, and remanded the case for compliance with the terms of the joint motion. The case has been returned to the Board for further appellate review. The Board also notes that additional evidence was forwarded to the Board in January 2013. Again, the Veteran has waived initial RO consideration of the new evidence submitted in conjunction with his claim. 38 C.F.R. § 20.1304 (c) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Pursuant to the June 2012 Joint Motion for Remand, and upon preliminary review of the record with respect to the Veteran's claim on appeal, further development is required prior to final appellate review. The Veteran contends that although he was not diagnosed with obstructive sleep apnea in service, he experienced symptoms of sleep apnea in the form of loud snoring, periods of lack of breathing at night, and excessive daytime drowsiness due to his lack of restful sleep. The Veteran asserts that service connection is warranted for his obstructive sleep apnea. As previously noted, in a January 2012 decision, the Board determined that service connection was not warranted for the Veteran's obstructive sleep apnea. It was concluded that while the Veteran was diagnosed with mild obstructive sleep apnea in 2005, which was shortly after his discharge from service, the service treatment records failed to show sleep apnea or any sleep-related disorder during service. More importantly, a December 2009 VA examiner opined that it is less likely that the obstructive sleep apnea had its origin during the Veteran's military service. The VA examiner explained that sleep apnea tends to be associated with obesity and weight gain. The examiner noted that the Veteran gained 50 pounds since his discharge from military, which would predispose him to sleep apnea in association with his airway structures. In the June 2012 Joint Motion for Remand, the Court found that the Board failed to advise the Veteran of his right to submit corroborative "buddy statements" that he could use to establish his claim where there is no evidence of in-service occurrence. The Joint Motion for Remand was premised on the fact that the Board hearing had not complied fully with the holding in Bryant v. Shinseki, 23 Vet. App. 488 (2010). Bryant held that 38 C.F.R. 3.103(c)(2) required that the RO official or Veterans Law Judge (VLJ) who conducted a hearing fulfill two duties. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Joint Motion for Remand suggested that in this case, while the undersigned Acting VLJ explained, in detail, the issues on appeal, the Acting VLJ failed to advise the Veteran that he could submit "buddy statements" to corroborate his testimony of having symptoms associated with sleep apnea during service. Before the Joint Motion for Remand was issued regulatory changes were promulgated, effective August 23, 2011, to clarify that 38 C.F.R. § 3.103(c)(2) only applies to hearings before the agency of original jurisdiction. In other words, the holding in Bryant is not applicable to Board hearings; as Board hearings were never intended to be covered by the hearing provisions in 38 C.F.R. § 3.103, as Board hearings are governed by the hearing provisions in 38 C.F.R. Part 20, subpart H. Thus, the regulatory clarification has effectively mooted the holding in Bryant as it pertains to the Board. As such, even were the Veteran's claim to be remanded for another hearing, the VLJ at the new hearing would be under no obligation to fully explain to the Veteran issues material to substantiating his claim under this regulation (beyond what was clearly done in the prior hearing). Thus, the basis of the Joint Motion for Remand is effectively moot. Importantly, the regulatory change is clearly retroactive. The change in August 2011 does not modify the rules regarding hearings, but provides clarity regarding a pre-existing rule, clearly and unambiguously stating that 38 C.F.R. § 3.103(c)(2) only applies to hearings before the agency of original jurisdiction, not the Board as Board hearing are governed by the hearing provisions in 38 C.F.R. Part 20, subpar t H. Nevertheless, a remand is unfortunately necessary in this case. The Joint Motion for Remand explained that on remand the Veteran would be free to submit additional evidence and argument on the questions at issue, and the Board would be free to seek any other evidence deemed necessary to the resolution of the Veteran's claim. Additional evidence was received in January 2013. Specifically, the Veteran submitted two buddy statements dated September 2012. Both statements attest to the Veteran's snoring problems in service. See the two September 2012 statements from S.A. and D.B. As these statements may potentially establish service connection where there is no evidence of an in-service occurrence, the Board finds that an additional VA examination is warranted in order to determine whether the Veteran's obstructive sleep apnea is attributable to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and extent of his obstructive sleep apnea, and determine whether there is a causal relationship between active military service and the claimed disability. All necessary testing should be conducted and all appropriate diagnoses pertaining to the Veteran's sleep impairment should be rendered. For any sleep disorder found, the examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's sleep disorder had its origin in service or is otherwise causally related to any incident of or finding recorded during service, including snoring and breathing difficulty while sleeping, beginning in 1987, as reported by the Veteran's spouse at the June 2008 Board hearing. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. The examiner must specifically comment on the December 2009 VA medical opinion and buddy statements from S.A. and D.B. dated September 2012. All opinions expressed must be supported by complete rationale. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated and he/she must discuss why an opinion is not possible. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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. 2012). _________________________________________________ ROBERT E. O'BRIEN 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) (2012).