Citation Nr: 1338505 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 13-24 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from May 1981 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Veteran's Virtual VA electronic claims folder reveals that, with the exception of an October 2013 brief submitted by the Veteran's representative and additional VA treatment records dated to January 2012, the documents are either duplicative of records already associated with the paper claims file or are not relevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking service connection for sleep apnea. In statements of record, the Veteran has reported that he began experiencing symptoms such as snoring and falling asleep during the day while in service. He indicated that his wife and other soldiers could not stay in the same room with him due to his loud snoring. The Board observes that the Veteran is competent to report such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Moreover, the Veteran underwent a sleep disorder assessment in December 2010. At that point, he reported that the problems began 10 years ago, which would have been around the time of his retirement from service. The Veteran has not been afforded a VA examination with respect to this issue. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Accordingly, in light of the Veteran's competent statements concerning symptoms in service, the Board finds that he should be afforded a VA examination to determine the etiology of his current diagnosed sleep apnea. See 38 C.F.R. § 3.159(c)(4). Lastly, the Board notes that the most recent private treatment records from Munson Army Community Hospital are dated in March 2011 and the most recent VA treatment records are dated in January 2012. The Veteran reported in his August 2013 substantive appeal that more recent treatment records were available, which were pertinent to his claim. Therefore, on remand, the Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for his sleep apnea and, thereafter, all identified records, to include VA treatment records dated from January 2012 to the present, should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for his sleep apnea. After securing any necessary authorization from him, obtain all identified treatment records, to include VA treatment records dated from January 2012 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, the Veteran should be scheduled for an appropriate VA examination to determine the etiology of his sleep apnea. It is imperative that the claims file be made available to the examiner for review in connection with the examination, to specifically include these remand instructions. All medically necessary tests should be performed. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that sleep apnea began in, or is otherwise related, to the Veteran's military service. A detailed rationale for all opinions expressed should be provided. The examiner should specifically address the lay evidence concerning symptoms in service. 3. Thereafter, and any further development deemed necessary, 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 and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).