Citation Nr: 1311550 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 11-02 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for obstructive sleep apnea (hereinafter "OSA"). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from January 1990 to February 2000, and had additional service in the Army and Navy Reserve. This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a May 2010 rating decision from the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Muskogee, Oklahoma. 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 (hereinafter "AMC"), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Upon review, the Board finds that further development is required prior to adjudicating the Veteran's claim for service connection for OSA. Specifically, the Veteran should be provided with a VA examination to determine the nature and etiology of his current OSA. Notably, private and VA treatment records indicate that, starting in September 2009, the Veteran has been diagnosed with and treated for moderate to severe OSA. The Veteran, his spouse and his sister have each submitted statements in April 2010, attesting to the fact that the Veteran did not snore prior to his entry into service, but that he began to snore and experience sleep disturbances and day-time exhaustion while in service and thereafter. The Veteran specifically asserted that his OSA became noticeable in 1994, and reported that each time that he returned from his deployment his roommates would have to wake him because of his snoring. He indicated that after he was married his spouse would have to wake him either because he stopped breathing, jumped in his sleep, or snored so loudly that she would have to leave the room. The Veteran also reported that over the last 17 years his work performance has suffered because of his lack of sleep. The Veteran and his family are generally competent to report about the observable symptoms of his OSA, such as snoring and sleep disturbance that he has reported experiencing since service, and the Board considers them generally credible in such reports. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran has not been afforded specific VA examination to assess his current OSA. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims (hereinafter "Court") has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. Locklear v. Nicholson, 20 Vet. App. 410 (2006). Here, there is clinical evidence of current OSA, and there is credible evidence that the Veteran experienced OSA symptoms, such as snoring, in service. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon, 20 Vet. App. 79 (2006). Accordingly, the Veteran should be afforded a VA examination to determine if his current OSA had its onset in, was aggravated by, or is otherwise related to his active military service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must arrange for the Veteran to undergo an appropriate VA examination to determine the nature and likely etiology of the claimed OSA. A copy of this remand and all relevant medical records should be made available to the examiner-such records must be made available to the examiner either in the Virtual VA eFolder, or, if the eFolder is not available (such as if the examiner has no access to Virtual VA), then via paper copies that are printed out for the examiner. The examiner is asked to confirm that all paper and electronic records were available for review. The examiner is asked to review the pertinent evidence, including the Veteran's, his spouse's and his sister's lay assertions, and also undertake any indicated studies. Upon examination of the Veteran and identification of any OSA symptoms, based on the record review and examination results, the examiner is requested to provide a current diagnosis and specifically address the following question: Is it at least as likely as not (i.e., there is at least a 50 percent probability) that any currently identified OSA had its onset during service or is otherwise causally related to any event or circumstance of his active service? For purposes of making this determination, the examiner is asked to consider the Veteran's, his spouse's and his sister's assertions that he first started snoring in 1994 while on active duty and has snored since then as well as statements regarding the observation of other sleeping behavior and problems, and the private and VA treatment records that show current and ongoing treatment for OSA. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions regarding the onset, continuity, and relationship of his symptomatology. It is essential that the examiner offer a detailed explanation discussing why and how all conclusions and opinions were reached. This discussion should include reference to specific evidence in the Veteran's claims file, including the in-service and post-service medical records, and the lay assertions, as indicated. If the examiner determines that an opinion relating a current disorder to service would be speculative, s/he must clearly explain the reasons supporting this conclusion. The examiner is thus requested to prepare a printed report setting forth all examination findings, along with a complete rationale for all opinions and conclusions reached. 2. Upon completion of the above, the RO/AMC must readjudicate the remanded claim for service connection in light of all pertinent evidence and legal authority. If any such benefit sought on appeal remains denied, the RO/AMC should furnish the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. 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). _________________________________________________ S. L. Kennedy 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).