Citation Nr: 1338948 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-24 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2002 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the Virtual VA claims file does not reveal any additional evidence pertinent to the present appeal. 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 Veteran contends that his sleep apnea began during service. He asserts his obstructive breathing documented in November 2007 represents obstructive sleep apnea. See July 2012 informal hearing presentation. Service treatment records (2002-2008) do not demonstrate a diagnosis of sleep apnea but show complaints of fatigue following sleep, snoring, and obstructed breathing. In March 2011, the Veteran underwent a VA examination which revealed a diagnosis of sleep apnea. The etiology of sleep apnea was not specified although it was pointed out that snoring, which the Veteran describes as having in service, may or may not coexist with sleep apnea. In sum, the VA examination is inadequate as it fails to determine the etiology of sleep apnea to include whether it is related to service. On remand, the Veteran should be afforded another VA compensation examination which provides a medical opinion regarding the etiology of the Veteran's current sleep apnea and takes into account the entire evidentiary record, to include the Veteran's competent and credible statements of ongoing fatigue, sleep and breathing problems since his initial complaint in 2005. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see 38 C.F.R. § 4.2 (2013) (VA has a duty to provide an examination that is adequate for rating purposes); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of continuity of symptomatology). The evidence reflects that the Veteran contends he had received an initial diagnosis for his obstructive breathing condition in July 15, 2007. See October 2011 VA Form 646. Related records are not on file. To that end the Veteran should be afforded an opportunity to submit those records as well as any other private treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain and associate with the claims file all outstanding VA treatment records from January 2011 to the present. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts would be futile. 2. The RO/AMC should ask the Veteran to complete authorizations to obtain all records of his treatment for his sleep apnea, including those records indicating a prior diagnosis for obstructive breathing in July 2007. All efforts to obtain these treatment records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any records are unavailable, the Veteran should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records and additional action that may be taken concerning his claim and should be advised to submit any records in his possession. All such notification must be documented in the claims file. 3. After additional relevant treatment records are obtained and associated with the claims file, schedule the Veteran for a VA examination to determine the etiology of his current sleep apnea. All indicated tests and studies should be conducted. The claims folder, including a copy of this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50:50 degree of probability) that the Veteran's current sleep apnea is related to service. The examiner must consider the Veteran's competent and credible lay statements as to in-service sleep difficulty, fatigue, and snoring, as well as continuity of symptomatology since service. A complete rationale must be provided. If the examiner is unable to render an opinion without resorting to speculation, the examiner must explain why such opinion cannot be rendered. 4. Then, the RO should readjudicate the claim. If the claim is not granted in full, the Veteran must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate decision. 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). _________________________________________________ K. Parakkal 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).