Citation Nr: 1320852 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 11-10 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to January 1980. He served in Vietnam from March 1967 to March 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision of the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2012, the Veteran testified at a videoconference hearing at the RO before the undersigned. A transcript of that proceeding is of record. In January 2013 the Board denied a claim for service connection for residuals of left arm skin cancer, and remanded the claim for service connection for sleep apnea for additional development. 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 REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The Board remanded the case in January 2013 to obtain VA treatment records and provide the Veteran a VA examination. Documentation in the file indicates that the Veteran was notified in a February 2013 letter that a VA examination would be scheduled by the closest VA medical facility. He was informed that if he failed to report for an examination without good cause his claim would be rated based on the evidence of record, or denied. Information in the claims file reflects that a scheduled VA examination was cancelled because the Veteran had withdrawn his claim, as shown in an April 2013 Compensation and Pension Exam Inquiry. In an April 2013 letter to the Veteran he was notified that notice had been received from the Oklahoma City Medical Center reflecting that he wanted to withdraw his appeal. He was asked to complete an attached form and return to the VA within 30 days to confirm whether or not he wanted to withdraw his appeal. In a letter received in April 2013, the Veteran indicated that he did not want to withdraw his appeal and that he had instead requested that his medical appointment be rescheduled due to his wife's critical condition. He asked that the medical center reschedule his VA examination. Good cause having been found for his failure to appear for a scheduled VA examination, the case should be returned to the RO to reschedule the Veteran for another VA examination. Accordingly, the case is REMANDED for the following actions: 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. Schedule the Veteran for a VA examination to obtain evidence as to the etiology of his current sleep apnea, including the relationship, if any, to service-connected disabilities, to include posttraumatic stress disorder (PTSD), sinusitis, allergic rhinitis, and hypertension. The examiner must review the claims file and must note that review in the report. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. A complete rationale must be provided for each conclusion reached. The examiner should respond to the following: (a) Does the Veteran have a sleep disorder other than sleep apnea? (b) Is it at least as likely as not (50 percent or greater probability) that a current sleep disability, to include sleep apnea, is caused by any service-connected disability? If so, why? (c) Is it at least as likely as not (50 percent or greater probability) that a current sleep disability, to include sleep apnea, is aggravated (permanently increased in severity beyond the natural course of the disability) by any service-connected disability? If so, why? (d) Is it at least as likely as not (50 percent or greater probability) that a current sleep disability, to include sleep apnea is otherwise due to the Veteran's active military service? 2. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Appellant has the right to submit additional evidence and argument on the matter or 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 the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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).