Citation Nr: 1317476 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-43 598 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness and as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from May 1988 to May 1992. He served in Southwest Asia in support of Operation Desert Strom. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2009 by RO. The Virtual VA paperless claims processing system contains information pertaining to the Veteran being adjudicated incompetent for VA benefits purposes, and indicating that his spouse has been appointed as his fiduciary. This case was the subject of a July 2012 Order of the Court of Appeals for Veterans Claims that granted a Joint Motion for Remand of the parties and thereby vacated the July 2011 decision of the Board in this matter. The below action is directed in view of the Court's Order. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In a July 2012 Joint Motion for Remand, the parties agreed that the Board's July 2011 denial of the claim for service connection for sleep apnea should be returned to the Board to fulfill VA's duty to assist, including seeking to obtain any additional relevant records of VA treatment. See 38 U.S.C.A. § 5103A(a)-(c). The Veteran claims to have sleep apnea caused by PTSD. Since the time of a July 2011 decision, the Veteran has been granted service connection for PTSD, and the Veteran has submitted VA treatment records that include an October 2009 sleep study consistent with a diagnosis of sleep apnea. The Board does not have the medical expertise to determine whether the Veteran's sleep apnea is caused or chronically worsened by his PTSD or is otherwise related to his period of active service. Accordingly, the Board will afford the Veteran a VA examination and opinion in this matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board is not competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran had any disorder that was related to his period of active service, and if the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions); 38 U.S.C.A. § 5103A(d) (duty to assist-VA examinations). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should take appropriate action to contact the Veteran in order to have him identify all VA and non-VA health care providers who have treated him for his service-connected psychiatric disability and sleep apnea. After obtaining any appropriate authorizations for release of medical information, the RO should seek to obtain copies of any potentially relevant and available records that have not been previously received from each health care provider identified by the Veteran. This should include any relevant records of VA treatment from March 2012 forward (the Veteran, through his representative, has submitted a large quantity of VA treatment records dated from April 2009 to March 2012). The Veteran should also be advised that, with respect to private medical evidence, he may alternatively obtain the records on his own and submit them to the RO. 2. Once all available relevant medical records have been received, the RO should make arrangements for the Veteran to be scheduled for a VA examination to determine the nature and likely etiology of the claimed sleep apnea. The RO should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed. The records reviewed should include the Veteran's service treatment records. The records reviewed should include October 2009 records of VA treatment indicating that a VA sleep study was consistent with obstructive sleep apnea. After reviewing the entire record and examining the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that any current disability manifested by obstructive sleep apnea had its clinical onset during his period of active service or otherwise is related to an event or incident any incident of that service. The examiner also should provide an opinion as to whether it is at least is likely as not (whether there is a 50 percent or greater probability) that any disability manifested by obstructive sleep apnea is caused or aggravated by his service-connected PTSD or other service-connected disability. In all conclusions, the examiner should identify and explain the medical basis or bases, with identification of the relevant evidence of record. The examiner should provide a fully reasoned explanation for his or her opinions, based on established medical principles and his or her clinical experience and medical expertise. 3. After completing all indicated development to the extent possible, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish the Veteran and his representative a fully responsive Supplemental Statement of the Case and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ STEPHEN L. WILKINS 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).