Citation Nr: 1333611 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-26 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to November 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). In March 2009 and March 2013, the Board remanded the Veteran's claim for additional development and adjudicative action. The case has now returned to the Board for further appellate review. In June 2008, the Veteran testified at a personal hearing before an Acting Veterans Law Judge (AVLJ), sitting at the RO. The AVLJ has since left the Board, and the Veteran was offered the opportunity for another hearing before a current Veterans Law Judge. In July 2013, he declined the offer. Also in August 2013, the Veteran submitted additional lay statements in support of his claim. See 38 C.F.R. § 20.1304 (2012). The Board notes that he waived agency of original jurisdiction (AOJ) consideration of this evidence. Id. Therefore, the Board may properly consider such evidence in rendering its decision. In January 2011, the Board denied the Veteran's claim for service connection for obstructive sleep apnea. The Veteran appealed the Board's January 2011 decision to the United States Court of Appeals for Veterans Claims (Court). By an Order dated in June 2012, the Court granted a Joint Motion for Remand, vacated the January 2011 Board decision, and remanded the case for compliance with the terms of the joint motion. The case has been returned to the Board for further appellate review. 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 Regrettably, the Board determines that another remand is necessary in this appeal. In accordance with the March 2013 remand, a VA examination was performed in April 2013 to assess the etiology of the Veteran's sleep apnea. The examiner reviewed the record, including lay statements, and opined that the Veteran's sleep apnea less likely as not had its origin in service or was causally related to an incident or finding recorded during service. In support of this opinion, the examiner indicated, in part, that loud snoring as reported in lay statements was not necessarily a symptom of sleep apnea. Further, the examiner emphasized the fact that the Veteran's treating physician in August 2005 did not document daytime somnolence, hypersomnia, or suddenly falling asleep during the day. He also noted the December 2009 VA examiner's discussion of the Veteran's history of not demonstrating distinct evidence of sleep apnea, including daytime somnolence which is often present in the early stages. However, at his August 2005 sleep study, the Veteran reported daytime somnolence. The September 2012 lay statement from DB discusses not only the Veteran's snoring in service, but also his nodding off during the day when there was a lull in activity. An August 2012 statement by AL, the Veteran's sister-in-law, indicates that when she visited her sister and the Veteran for two months during the summer of 1991, he would fall asleep while they were engaged in conversation. Thus, there is evidence suggesting that the Veteran experienced daytime somnolence both in and after service that contradicts the assessment that the Veteran did not experience daytime somnolence. The lack of daytime somnolence was a significant factor in the negative opinion offered by the April 2013 VA examiner, and the above evidence renders that opinion inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Board determines that another opinion as to the etiology of the Veteran's obstructive sleep apnea must be obtained. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who performed the April 2013 VA examination for an addendum to the April 2013 opinion. The report must reflect that review of the claims file occurred, including the statements submitted in July 2013. Once the record has been reviewed, the examiner should provide an opinion that clarifies the prior opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea first manifested in service, particularly with regard to whether the Veteran experienced daytime somnolence in service. In forming the opinion, the examiner must specifically consider and reconcile his/her opinion with the lay statements submitted in August 2013, specifically a September 2012 lay statement from DB which discusses not only the Veteran's snoring in service, but also his nodding off during the day when there was a lull in activity, and an August 2012 statement by AL, the Veteran's sister-in-law, which indicates that when she visited her sister and the Veteran for two months during the summer of 1991, he would fall asleep while they were engaged in conversation, as well as treatment notes that suggest or discuss daytime somnolence. The examiner must then offer another opinion that contemplates this evidence. 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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion advanced must be provided. If the April 2013 VA examiner is not available, the opinion may be obtained from an equally qualified physician. In addition, if it is determined that an opinion cannot be formed without another clinical examination of the Veteran, such examination must be scheduled. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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. 2012). _________________________________________________ U. R. POWELL 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).