Citation Nr: 1338004 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-48 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for upper airway resistance syndrome. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1986 to March 1988 and from July 2005 to August 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA), Regional Office (RO). In August 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the claims file. Following the hearing additional evidence was submitted without a waiver of RO initial consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required. REMAND As is noted above, the Veteran had two periods of active duty service. Service treatment records (STRs) and medical examination reports for her period of active duty from September 1986 to March 1988 are not associated with the record. In addition, while some records from the second period of active duty (treatment records dated in October and November 2005 and March and May 2006) are associated with the record, it appears that additional records from that period remain outstanding. Furthermore, at the August 2011 Travel Board hearing, the Veteran testified that she reported problems associated with her upper airway resistance syndrome to examining doctors on Reserve service periodic examinations; reports of such examinations therefore appear to be pertinent evidence that is of record, but has not been associated with the record before the Board. The Veteran identified the U.S. Jump 4th Command, 1562 Michener Avenue, Suite 200, Norfolk, Virginia 23551 as the Reserve unit in which she served (and may have pertinent records). The Veteran testified at the hearing that during her second period of service, she began experiencing symptoms related to upper airway resistance syndrome. Written statements from her family members essentially relate that they witnessed changes in her breathing patterns upon her return from Deployment. Notably, symptoms of the disability at issue are capable of lay observation. The Veteran has not been afforded a VA examination in connection with this claim. Under the circumstances presented, and in light of the low threshold standard for determining when an examination is necessary endorsed by the U. S. Court of Appeals for Veterans Claims in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds that a VA examination to determine the nature and likely etiology of the Veteran's claimed respiratory disorder is necessary. As the claim is being remanded anyway, the RO will have the opportunity to update the Veteran's VA treatment records that are associated with the record, and to review in the first instance the additional evidence that has been submitted. The case is REMANDED for the following: 1. The RO should arrange for exhaustive development to secure for the record the Veteran's STRs and examination reports that are currently outstanding, including the STRs and examination reports from her first (1986-1988) period of active duty, the remainder of the STRs/examination reports for the second period of active duty (including from her deployment to Kuwait), and the reports of all periodic examinations conducted in connection with her Reserve service. At the very least the sources encompassed by the search should include the NPRC, all depositories of retired and Reserve personnel, and the U.S. Jump 4th Command, (1562 Michener Avenue, Suite 200, Norfolk, Virginia 23551). If the additional records sought are not located, they must be certified to be irretrievably lost or destroyed, and the scope of the search should be described for the record. 2. The RO should secure for the record copies of all VA treatment the Veteran has received for respiratory complaints since February 2010. 3. When the development sought above is completed, the RO should arrange for a respiratory diseases examination of the Veteran to determine the nature and likely etiology of her claimed respiratory disability. The Veteran's record must be reviewed by the examiner in conjunction with the examination, and any indicated tests or studies should be completed. Based on review of the record and examination of the Veteran, the examiner should: (a) Identify by medical diagnosis each respiratory disorder found; and (b) as to each respiratory disorder diagnosed, opine whether such is at least as likely as not (a 50% or better probability) related to her active duty service, including as due to any environmental exposures therein. The examiner must explain the rationale for all opinions. 4. The RO should then review the record (to specifically include the lay statements by the Veteran's family members received at the Board in March 2012, without a waiver of initial RO consideration) and re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 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). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).