Citation Nr: 1314634 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-31 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to March 1992, December 2003 to February 2005, and April 2008 to April 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. The January 2010 rating decision also denied service connection for left knee strain and the Veteran filed a notice of disagreement (NOD) later in January 2010. During the pendency of the appeal, a July 2010 Decision Review Officer (DRO) decision granted service connection for patellar chondromalacia of the left knee with an initial rating of 10 percent, effective May 1, 2009. Thus, the full benefits sought on appeal have been granted and the issue is no longer before the Board. A March 2010 rating decision granted the Veteran service connection for posttraumatic stress disorder (PTSD) with an initial rating of 10 percent effective January 20, 2010. The Veteran filed an NOD in April 2010 with respect to the propriety of the initial rating assigned and indicated that he believed that such disability warranted a 30 percent rating. An October 2010 DRO decision recharacterized the issue as service-connected PTSD to include depressive disorder and assigned a rating of 30 percent effective January 20, 2010. The Veteran was advised that such was an award of all benefits sought on the Veteran's NOD and, therefore, such is considered satisfied in full. Therefore, as the Veteran limited his appeal to a 30 percent disability rating and such was granted, the issue of a higher initial rating for the service-connected PTSD is not properly before the Board. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (where there is a clear intent, a claimant may limit the appeal to a specific rating). In July 2011 the Veteran, through his representative, filed a claim for a rating in excess of 10 percent for his service-connected left shoulder tendonitis, minor, and service connection for esophagitis as secondary to his service-connected left shoulder tendonitis. In a June 2012 rating decision, the RO granted service connection for gastroesophageal reflux disease and assigned a noncompensable evaluation, effective July 27, 2011; the RO also denied the Veteran's claim for an increased rating in excess of 10 percent for his service-connected left shoulder tendonitis. The Veteran has not appealed the July 2011 rating decision; thus, those issues are not before the Board. 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, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran claims that, during his last period of military service (April 2008-April 2009), he was stationed in Kosovo and worked long hours and could never sleep right. His roommates continually complained of his snoring and restless sleeping during the night and they reported that he often sounded as he was choking as he slept. He also reported that they stayed in remote areas and when he was providing security he slept in a small shipping container and his roommate worked the night shift and could not sleep until the Veteran left for duty. He stated that he complained of snoring symptoms in October 2009 and was diagnosed with sleep apnea in December 2009. The Veteran's service treatment records do not include any complaints of, treatment of, or diagnosis of sleep apnea. Post-service treatment records show that he was diagnosed with sleep apnea in December 2009. The Veteran was afforded a VA general medical examination in November 2009. The examiner noted that the Veteran reported that his military roommate and his wife complained that he snores loudly and has apnea episodes during sleep. He indicated that he falls asleep easily during the daytime and that his sleeping disorder caused daytime fatigue, making it difficult for him to concentrate at work and to participate in strenuous activities. The Veteran drank 50 ounces of caffeine per day. It was noted that the Veteran did not have a current diagnosis of sleep apnea but was seen in the sleep clinic in October 2009 for evaluation and was scheduled for a sleep study in December 2009. The Board finds that, since the Veteran was diagnosed with sleep apnea in December 2009 and thus, after the November 2009 VA examination, he should be afforded another VA examination so as to determine whether his diagnosed sleep apnea began during his military service or is otherwise related to such service, to include the circumstances surrounding his service in Kosovo. Additionally, as noted previously, the Veteran has reported that his wife and his in-service roommate both reported that he had symptoms of sleep apnea in service. Therefore, while on remand, the agency of original jurisdiction (AOJ) should provide the Veteran with an opportunity to submit statements from his wife and his in-service roommate regarding the type of sleep symptoms they witnessed during his military service. Finally, the Veteran should be given an opportunity to identify any healthcare provider who treated him for sleep apnea. After securing any necessary authorization from him, obtain all identified treatment records that are not already of record, to include VA treatment records, for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for sleep apnea. After securing any necessary authorization from him, obtain all identified treatment records that are not already of record, to include VA treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be given an opportunity to submit statements from his wife and his in-service roommate regarding the type of sleep symptoms they witnessed during his military service. 3. After obtaining all outstanding records, the Veteran should be scheduled for a VA sleep apnea examination. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea began during his military service or is otherwise related to such service, to include the circumstances surrounding his service in Kosovo. In this regard, the examiner should specifically consider the Veteran's statements and any lay statements, to include those from his wife and in-service roommate, regarding the Veteran's in-service symptoms of snoring loudly, stopping breathing several times, choking, or gasping for air. Any opinions expressed must be accompanied by a complete rationale. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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 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). _________________________________________________ A. JAEGER 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).