Citation Nr: 1330327 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 08-06 745A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for sleep apnea, to include as a result of exposure to Agent Orange. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service form January 1968 to December 1969. His decorations include the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, and issued by the RO in Montgomery, Alabama. In February 2012 and May 2013, the Board remanded this case for further development. The case has returned to the Board for appellate review. 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 Court has held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court in Stegall has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. at 271. Thus, while the Board regrets the additional delay in this case, for the reasons discussed below, the case must be returned to the AOJ. In May 2013, the Board remanded the claim for a VA examination addendum opinion so that the examiner could specifically account for the pertinent medical history reported by the Veteran, his wife, and his mother concerning snoring, and interrupted breathing since service. In a June 2013 VA examination addendum opinion, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that any person can snore, and as many as 50 percent of adults snore at some time during sleep. The examiner stated that snoring is common in adults and can be explained by being overweight, drinking alcohol before bedtime and by nasal congestion. The examiner found that observing a person snoring does not diagnose obstructive sleep apnea. The examiner did not specifically account for the reports of interrupted breathing during sleep since service. Accordingly, the case is REMANDED for the following actions: 1. Return the file to the examiner who conducted the March 2012 sleep apnea examination of the Veteran, and provided the June 2013 supplemental report, if available, for further consideration to address the Veteran's reported history that includes interrupted breathing during sleep since service. (The June 2013 supplemental opinion appeared to only address reports of snoring since service.) Considering this and any other pertinent contention and evidence, the opinion should address whether it is at least as likely as not (50 percent or better probability) that the Veteran's obstructive sleep apnea was incurred in military service. A complete rationale should be provided and comments as to whether other records reflect signs or symptoms of long standing sleep apnea; and whether any other facts would illuminate the likely cause or time of onset of the condition would be useful for deciding the Veteran's claim. If it is not possible to provide the requested opinion without resort to speculation, the reasons for that should be explained. A medical opinion without examination will be sufficient in this case unless a new examination is deemed necessary by the VA medical professional authoring the opinion. If the prior examiner is unavailable, the requested opinion should be sought from another qualified person. 2. After completing the above, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).