Citation Nr: 1334197 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-04 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a sleep disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1972 to December 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2011, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in Waco, Texas. A copy of the transcript is of record. In an August 2012 decision, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. REMAND Pursuant to the Board's August 2012 remand instructions, the RO arranged for a VA Disability Benefits Questionnaire (DBQ) examination for sleep apnea in April 2013. That examination report reflects the VA examiner conducted a thorough examination of the Veteran and rendered a diagnosis of obstructive sleep apnea. The examiner also provided a medical opinion that the Veteran's sleep apnea is less likely than not incurred in or caused by military service, without consideration of a link between the Veteran's current sleep disorder and asserted drug abuse while in service. Although the VA examiner was not specifically requested in the August 2012 remand instructions to opine on such a link, the Board finds that in order to decide the issue on appeal, such consideration should be conducted and reflected in an addendum medical opinion. As a result, the Board finds that an additional VA medical opinion is necessary to ensure there is a complete record upon which to decide this claim on appeal. The RO/AMC should arrange for the Veteran's claims file to be reviewed by the physician who conducted the April 2013 VA DBQ examination for sleep apnea and prepared the medical opinion (or a suitable substitute if that physician is unavailable) for the purpose of preparing an addendum opinion. Accordingly, the case is REMANDED for the following actions: 1. Furnish the Veteran's entire claims file to the physician who conducted the April 2013 VA BDQ examination (or a suitable substitute if that physician is unavailable) for sleep apnea and prepared the medical opinion. The physician must review all pertinent evidence of record and prepare an addendum opinion to as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed sleep apnea is related to the asserted drug abuse while in service. A rationale should be given for all opinions and conclusions expressed and should not be based solely on the absence of treatment records during or after service. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have 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 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). _________________________________________________ T. D. JONES Acting 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).