Citation Nr: 1321987 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-27 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for sleep apnea, claimed as secondary to service-connected diabetes mellitus, hypertension or posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from May 1967 to May 1987. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In this case, the Veteran's April 2009 Notice of Disagreement, and testimony during a March 2013 hearing before the undersigned Veterans Law Judge, make it clear that he contends that his sleep apnea was caused or aggravated by his service-connected diabetes mellitus, hypertension or PTSD. He has not contended, and the evidence does not suggest, that his sleep apnea had its onset during or as a result of service. When neither the veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. Therefore, the Board will not discuss direct service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008). 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. REMAND A preliminary review of the record indicates that this claim requires additional development. The Veteran is service-connected for hypertension, diabetes mellitus and PTSD. VA medical records reflects treatment for sleep apnea during the appeal period. He has submitted articles linking hypertension and diabetes mellitus to the development of sleep apnea. During the March 2013 hearing, the Veteran's representative stated that a review of past Board decisions revealed that the Board had often granted service connection for sleep apnea secondary to PTSD. The Veteran stated in essence that he had noticed his sleep apnea begin after the development of his service-connected hypertension, diabetes mellitus and PTSD. The Veteran is competent to report that his sleep apnea symptoms began at the same time, or after, he developed these service-connected disabilities. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Since the foregoing evidence raises the possibility that the Veteran's service-connected diabetes mellitus, hypertension or PTSD caused or aggravated his sleep apnea, the Board finds that a remand is necessary in order for the RO to obtain a VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the Veterans Claims Assistance Act of 2000 (VCAA) requires that VA assist a claimant by providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2012). During the March 2013 hearing, the Veteran also stated that he received all his medical care from the Tacoma, Washington, VA Medical Center (VAMC) and the American Lake Division of the VA Puget Sound Health Care System (HCS). The most recent VA treatment record in the claims file is dated June 4, 2010, and is from the Seattle Division of the Puget Sound HCS. The claims file contains no VA treatment records from the Lake Division. The Veteran's Virtual VA eFolder contains no VA treatment records. VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(2) (2012). There are also heightened obligations to assure that the record is complete with respect to Federal Government records. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159(c). VA treatment records are deemed to be constructively of record in proceedings before the Board. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As it appears that outstanding VA treatment records exist, any VA treatment records not in the record before the Board should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file and the Virtual VA eFolder copies of all VA medical records that are not already of record, to include all records dated after June 4, 2010, from the Seattle Division of the Puget Sound HCS, as well as all records from the Tacoma VAMC and any other VA facility in the American Lake Division of the Puget Sound HCS. 2. Then, schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any sleep apnea that may be present. The claims file and Virtual VA eFolder must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any sleep apnea is proximately due to or chronically aggravated by the Veteran's service-connected diabetes mellitus, hypertension or PTSD. A complete rationale for all opinions expressed must be provided. 3. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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 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). _________________________________________________ MILO H. HAWLEY 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).