Citation Nr: 1332872 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-19 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1964 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran had a hearing before the Board in April 2011 and the transcript is of record. In November 2011, the Board remanded the issue on appeal for additional development. Unfortunately, there has not been substantial compliance with the mandates of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). 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 Board previously remanded this appeal and requested a VA examination and medical opinions on whether the Veteran's sleep apnea was incurred in service and whether the Veteran's sleep apnea was caused or aggravated by any service-connected disability. The Veteran was diagnosed by a private physician in July 2008 with mild obstructive sleep apnea. He previously testified that he never sought medical attention before then because he didn't think his symptoms represented a medical problem. At his Board hearing in April 2011, the Veteran claimed that he has suffered from sleep apnea symptoms since service and testified that he was teased for snoring. He also claimed that the sleep apnea is caused or aggravated by his now service-connected diabetes. Service connection for diabetes mellitus was just granted in August 2013. Pursuant to the Board remand, the Veteran was afforded a VA examination in February 2012 and additional opinions were received July and August 2013; however, those opinions are inadequate. None of the opinions considered the Veteran's credible history of excessive snoring during and after service (despite the lack of contemporaneous treatment) or addressed the relationship between sleep apnea and the recently service-connected diabetes. As such, a new opinion is required. Accordingly, the case is REMANDED for the following action: 1. Forward the claims folder to an appropriate physician to obtain a medical opinion as to the current nature and likely etiology of the Veteran's sleep apnea. Based on the review of the record, the examiner is asked to address the following question: is it at least as likely as not (a 50 percent or better probability) that the Veteran's sleep apnea was caused or aggravated by any service-connected disability, including Type II diabetes mellitus? In providing the opinion, the examiner should consider the Veteran's credible report of excessive snoring during and after service (despite the lack of contemporaneous treatment). The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of sleep apnea (i.e., a baseline) before the onset of the aggravation. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an examination. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Then, readjudicate the claim on appeal. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case before returning to the Board, if otherwise in order. 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).