Citation Nr: 1310967 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-35 854 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for a left hip disability, to include as secondary to a back disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1967 to January 1968 and from December 1990 to September 1991, and also had many years of service in the Air National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the St. Louis, Missouri RO in May 2008 (which in pertinent part declined to reopen a claim of service connection for sleep apnea) and July 2009 (which in pertinent part denied service connection for a left hip disability and declined to reopen a claim of service connection for a back disability). In May 2011, the Board reopened and remanded the claims of service connection for sleep apnea and a back disability, and also remanded the claim for a left hip disability. The May 2011 Board remand also included claims of service connection for bilateral hearing loss and tinnitus. A September 2012 rating decision granted service connection for tinnitus and right ear hearing loss, and a January 2013 rating decision granted service connection for left ear hearing loss, recharacterizing the service-connected hearing loss disability as bilateral. The Veteran has not initiated an appeal regarding these matters, and they are not before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claims. See 38 C.F.R. § 3.159 (2012). In May 2011, the Board remanded these claims and the remand instructions were completed to the extent reasonably possible. The RO then issued a January 2013 supplemental statement of the case (SSOC). Following the January 2013 SSOC, the Veteran submitted additional evidence consisting of numerous private treatment records regarding his back disability and left hip disability without a waiver of RO initial consideration of the newly submitted evidence. Furthermore, in a February 2013 statement the Veteran indicated that he had undergone a new "sleep apnea test" at the Leavenworth VA Medical Center in the previous month; he requested that updated records from the Leavenworth VA Medical Center be considered in connection with his pending appeal. The most recent VA treatment records in evidence (including in Virtual VA) are from October 2012. As more recent VA treatment records are constructively of record, and are alleged to be pertinent, they must be secured. Accordingly, the case is REMANDED for the following: 1. The RO should obtain from the Leavenworth VA Medical Center the Veteran's complete updated records of VA treatment (for the disabilities at issue) since October 2012 (to specifically include records pertaining to a sleep study in January 2013). 2. The RO should review the VA treatment records received pursuant to the request above, and the records the Veteran submitted after the issuance of the January 2013 SSOC without a waiver of RO consideration, and arrange for any further development suggested by the information therein. 3. The RO should ensure all development sought is completed, and then re-adjudicate the Veteran's remaining claims (service connection for left hip disability to include in light of the determination made regarding back disability). If any remains denied, the RO should issue an appropriate SSOC, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ George R. Senyk 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).