Citation Nr: 1332244 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 05-03 359 ) 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 secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the December 2002 decision by the St. Petersburg, Florida, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied service connection for sleep apnea. The Montgomery, Alabama, RO has assumed the role of agency of original jurisdiction in this appeal. In response to a timely notice of disagreement submitted by the Veteran, the Montgomery RO issued a statement of the case (SOC) in September 2004. In light of the mailing of the SOC to an outdated address, the RO resent the SOC to the Veteran on October 4, 2004. The Veteran responded by submitting a VA Form 9, Appeal to Board of Veterans' Appeals that was received by the RO on January 4, 2005. Under VA regulations, a substantive appeal must be submitted within one year of the rating decision appealed, or within 60 days of the issuance of a statement of the case, whichever is later. 38 C.F.R. § 20.302 (2012). As the Veteran's substantive appeal was received more than one year after the January 2003 notification of the December 2002 rating decision and more than 60 days after the October 4, 2004, remailing of the SOC, the substantive appeal was untimely. Nevertheless, the Court of Appeals for Veterans Claims (Court) held that VA waives any objection to the timeliness of a substantive appeal by taking actions that would lead an appellant to believe that the appeal was perfected. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). The Court stated that "[i]f VA treats an appeal as timely filed, [an appellant] is entitled to expect that VA means what it says." Id. at 47. In the present case, VA continued processing the Veteran's appeal as though it was timely. In this regard, a November 2008 Supplemental Statement of the Case (SSOC) was treating the appeal as continuing and listing the January 2005 substantive appeal without any comment on the timeliness of the appeal. Moreover, the RO completed an appeal certification indicating that a timely substantive appeal had been filed. Therefore, by its actions, VA waived the 60-day timeliness requirement for filing a substantive appeal concerning the issue of entitlement to service connection for sleep apnea. 38 U.S.C.A. § 7105(d) (2002 & Supp. 2012); 38 C.F.R. §§ 19.32 , 19.34, 19.35, 19.36, 20.302, 20.305 (2012); Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the issue of entitlement to service connection for sleep apnea secondary to the service connected condition of diabetes mellitus must be remanded for further evidentiary development. The Veteran initially claimed service connection for sleep apnea in September 2002. The RO denied service connection in December 2002 finding no nexus between the Veteran's current condition and service. In a later correspondence, the Veteran raised an alternate theory of entitlement asserting that his sleep apnea is secondarily caused by his service connected diabetes mellitus. Service connection may be granted for disability which is proximately due to or the result of service connected disability. 38 C.F.R. § 3.310(a) (2013). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The record reflects the Veteran has been afforded multiple VA examinations to address the Veteran's diabetes mellitus and one respiratory examination for sleep apnea. However, the Veteran has not been afforded a VA examination in conjunction with his secondary service-connection claim. On Remand, the RO or AMC should afford the Veteran a VA examination to determine the nature and etiology of the Veteran's sleep apnea in order to properly adjudicate the Veteran's claim. The Board reminds the Veteran that the duty to assist is not a one-way street. The record indicates the Veteran has failed to attend a scheduled February 2009 VA examination in relation to his claim for increase of diabetes mellitus. If the Veteran wishes to help develop his claim, he cannot passively wait for it. He must act by attending any scheduled VA examination so that VA can obtain all putative evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Moreover, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all medical care providers who treated the Veteran for sleep apnea since August 2010. After securing any necessary release, the RO should obtain these records. 2. Then, the RO or AMC should afford the Veteran an appropriate VA examination to determine the nature and etiology of the Veteran's sleep apnea. The claims folder, to include any records maintained in the electronic Virtual VA system, must be reviewed in conjunction with the examination. The examination should provide a complete explanation and rationale for the opinion. For the Veteran's claimed sleep apnea, the examiner should: (a) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran has a current sleep apnea disability that is (1) etiologically related to or (2) caused by the Veteran's active service; and (b) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran has a current sleep apnea disability that is (1) caused by or (2) aggravated by the Veteran's service connected diabetes mellitus. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, the RO or AMC should review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then, the claim on appeal should be readjudicated. If any of the benefit sought remain denied, an appropriate SSOC should be issued and provided to the Veteran and his representative. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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. 2013). _________________________________________________ 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) (2013).