Citation Nr: 1326690 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-23 822A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for sleep apnea to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to July 1993. This matter comes to the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Board has reviewed the Veteran's Virtual VA file and has considered the records contained therein in the remand below. 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 The Veteran seeks entitlement to service connection for sleep apnea. The Veteran claims that he developed sleep apnea during active service. He specifically argues that he experienced sleep problems in service during his service in the Gulf War. His DD 214 shows he has been awarded the Southwest Asia Service Medal. Service treatment records are completely silent for any treatment of or complaints of sleep problems or sleep apnea. However, in statements the Veteran and his wife have stated that he has experienced sleep problems since service. The Veteran has stated that he experienced sleep problems in service but did not know it was related to sleep apnea, only that he had difficulty with sleep. His wife has stated that she has been able to observe the Veteran having sleep problems since 1993 for which he was treated and ultimately diagnosed with sleep apnea. The Veteran and his wife are competent to report symptoms as they observe them. VA outpatient treatment records show that following an April 2008 sleep study, the Veteran was diagnosed with sleep apnea. The Veteran has not been afforded a medical examination in furtherance of substantiating the claim for service connection for sleep apnea and an examination is necessary to resolve this matter. The Veteran's offered history and his wife's statements indicate that the Veteran's sleep apnea may have been incurred during his active service. Accordingly, the Board finds that the Veteran should be afforded a VA examination to address this claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA examination by an appropriate medical professional for the purpose of ascertaining the current nature and likely etiology of his sleep apnea. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and he should be given access to Virtual VA for review of all records contained therein. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that sleep apnea was incurred in service. The examiner should also comment as to the approximate date of onset of sleep apnea. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Aggravation is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. 2. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before this case is returned 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 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). _________________________________________________ DAVID L. WIGHT 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).