Citation Nr: 1325946	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-23 459	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran had active service from November 1968 to November 1972, and January 1978 to January 1994.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

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.  

VA treatment records reflect that the Veteran has a current diagnosis of sleep apnea.  The Veteran contends that he observed symptoms of sleep apnea begin during active duty.  In June 2010 correspondence, a fellow serviceman stated that he had known the Veteran since 1986, when they were on active duty.  He stated that because of work and the American Legion, he had shared many hotel rooms with the Veteran, including post-service.  He stated that the Veteran had a history of sleep disorders, which he described.  In June 2010 correspondence, the Veteran's wife stated that she had been married to the Veteran since 1986.  She stated that in 1987, when the Veteran was in the Army, she noticed that he would stop breathing during the night.  

The Veteran and his witnesses are competent to report that his sleep disturbance symptoms began during active duty and have continued since that time.  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 evidence raises the possibility that the Veteran incurred sleep apnea during active duty, 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); 38 C.F.R. § 3.159(c)(4) (2012).  In addition, the law 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); 38 C.F.R. § 3.159.

In June 2010 correspondence, the Veteran identified VA facilities where he had received treatment.  Statutes and regulations require that VA assist a claimant by obtaining medical records that are necessary to make a decision on a claim.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  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).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the record any VA medical records that have not been associated with the record, to include treatment records from the Tallahassee VA Outpatient Clinic and the Gainesville VA Medical Center.  

2.  After completion of the foregoing, 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 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 that may be present is related to the Veteran's active duty.

The examiner is requested to provide a rationale for any opinion expressed.  

3.  Then, readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, the appellant 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 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).



_________________________________________________
M. E. LARKIN
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).