Citation Nr: 1332310 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-48 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active naval service from September 1979 to August 1983. This appeal to the Board of Veterans' Appeals (Board) is from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In December 20l0, the Veteran requested a videoconference. There is no evidence of record that the hearing was scheduled. In July 2011, the Veteran submitted an additional hearing request, this time for a hearing at the RO before a Veterans Law Judge of the Board (Travel Board Hearing). However, in June 2013, the Veteran withdrew his request for a hearing. Therefore, the Board deems his hearing request withdrawn. See 38 C.F.R. § 20.704(e)(2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In addition, the Board notes that the Veteran also had submitted a claim for increased rating for service-connected residuals of a spiral fracture to the left fibula. In August 2012, the Veteran filed a notice of disagreement (NOD) for this claim, in response to an August 2012 rating decision. However, in a letter dated May 8, 2013, the Veteran submitted a letter stating he was withdrawing his NOD, and he asked that the issue be treated as a claim for increase. Without addressing the legal merits of such a claim, the Board finds that the most appropriate action is to refer the new claim to the RO/AMC. The Board also notes that the Veteran's representative for the present sleep apnea claim does not represent him in the increased rating claim. The issue of increased rating for service connected residuals of a spiral fracture to the left fibula has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for sleep apnea is decided. A review of the record shows that the Veteran was diagnosed with obstructive sleep apnea in November 2006. In July 2012, the Veteran submitted a statement through his attorney that medical treatise information from Science Daily (August 6, 2010) indicates a correlation between sleep apnea and individuals who have suffered trauma. The Veteran contends that he suffered an in-service ankle injury when thrown by the effects of a car bomb, and he and his representative suggest that resultant brain trauma may have caused his obstructive sleep apnea. The Veteran also contends that he suffered from symptoms of sleep apnea since service, to include insomnia, snoring, daytime drowsiness, fatigue, and mood swings. The Veteran states that he discussed his symptoms with medical while in service; however, a February 2010 memorandum formally found that the Veteran's service records are unavailable, that all procedures had been followed to attempt to obtain them; and that further attempts are futile. In June 2009, the Veteran submitted a "buddy statement" from his former roommate while in service. In his statement, the fellow service member confirmed that the Veteran snored loudly while in service, and he stated that at times it seemed like the Veteran had difficulty breathing. In addition, the Veteran also submitted a June 2009 letter from a friend who knew him before and after service. In her letter, the friend mentioned that after service, the Veteran's sleep patterns were not consistent, he snored loudly when he did sleep, and on several occasions she would awaken him because it appeared he was not breathing. She reported that the Veteran had not experienced those symptoms prior to his active service. The Board notes that the Veteran is competent to report when his symptoms began and that they have continued since his active service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Further, lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone, 8 Vet. App. at 405; Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In light of the Veteran's report that his symptoms of a sleep disorder started on active service and have continued since that time, the buddy statement indicating he exhibited symptoms of sleep disorder in service, the lay statement from his friend indicating that he did not exhibit symptoms of sleep disorder prior to service but he did after service, and the current medical evidence showing that the Veteran has been diagnosed with obstructive sleep apnea, the Board finds that the Veteran should be afforded a VA examination in order to determine the nature and etiology of any currently present sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Board notes that the most recent treatment records of record are from October 2008, therefore current treatment records should be obtained prior to the examination. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any outstanding private treatment records, especially any relevant records since October 2008 (to include, but not limited to, treatment records from Cleveland Ear, Nose, Throat & Allergy Center, Inc.; treatment records from Hillcrest Hospital; and treatment records from Emmanuel O. Tuffuor M.D., Inc.). 2. Thereafter, the Veteran should be afforded a VA examination for his sleep apnea. All indicated tests and studies are to be performed. In conjunction with the examination, the entire claims folder must be made available to the examiner for review. A notation to the effect that this record review took place should be included in the report of the examiner. After reviewing the claims file and examining the Veteran, the examiner should provide an opinion with respect to any currently present sleep apnea as to whether it is at least as likely as not (50 percent or greater possibility) that the current disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should acknowledge the Veteran's complaints of sleep problems since service, as well as information provided in the statements from the Veteran's in-service roommate and friend. The examiner should also comment on the Veteran's contention regarding medical treatise evidence that there is a correlation between sleep apnea and individuals that have suffered trauma. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an SSOC and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ P. M. DILORENZO 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).