Citation Nr: 1318819 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-12 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. In a June 2012 decision, the Board denied the Veteran's claim for service connection of obstructive sleep apnea, including as secondary to service-connected PTSD. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, in February 2013, the Veteran's attorney and VA's Office General Counsel filed a Joint Motion for Remand. In a February 2013 Order, the Court granted the Joint Motion, vacating the Board's June 2012 decision to the extent that it denied service connection for obstructive sleep apnea, including as secondary to service-connected PTSD, and remanded that matter to 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 is required. The issue of payment or reimbursement of unauthorized medical expenses has been raised by the record within a December 2008 congressional contact; however, the record does not reflect whether this issue has been adjudicated by the Agency of Original Jurisdiction. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. REMAND In the Joint Motion issued in July 2012, the parties agreed that the Board failed to comply with the duty to assist because it did not obtain a VA examination to determine whether the Veteran's obstructive sleep apnea may be related to the Veteran's service-connected PTSD. Specifically, both parties agreed that the Veteran had submitted competent evidence that the Veteran's obstructive sleep apnea may be associated with the Veteran's service-connected PTSD, such that VA's duty to provide a VA examination as to the relationship between the Veteran's obstructive sleep apnea and service-connected PTSD was triggered. Under the VCAA, VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay statements can satisfy each of these elements in certain circumstances, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon, 20 Vet. App. at 83. The parties agreed that a remand was necessary to provide a VA examination or opinion. Thus, in order to comply with the Joint Motion, the Board must remand the Veteran's claim for additional development. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any obstructive sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any obstructive sleep apnea is caused by service-connected PTSD or is related to service. If the examiner finds that obstructive sleep apnea is not caused by service-connected PTSD or related to service, the examiner should specifically answer the question whether obstructive sleep apnea is aggravated by service-connected PTSD. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 2. Readjudicate the claim for service connection. If, upon completion of the above action, the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant 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). _________________________________________________ H. N. SCHWARTZ 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).