Citation Nr: 1338962 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-16 393 ) 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, to include as direct and as secondary to service-connected major depressive disorder and service-connected gastritis with dyspepsia, hiatal hernia and gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1995 to February 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In that decision, the RO denied service connection for sleep apnea. The Veteran included the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) in his December 2011 notice of disagreement and the issue was included in the statement of the case issued on May 2012. However, the Veteran specifically noted on his substantive appeal that he was only appealing the issue of entitlement to service connection for sleep apnea. No substantive appeal as to PTSD was filed during the applicable appellate period. See 38 C.F.R. §§ 20.302, 20.1103. As the Veteran did not properly perfect an appeal, the Board finds the issue of entitlement to service connection for PTSD is not on appeal. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. 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 has put forth several theories of entitlement for his service connection claim, to include both as directly related to service and secondary to service-connected disabilities. Upon review of the evidence, the Board finds that it must remand the claim for a new VA examination and further development of the record. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159(c)(4). In this case, the record contains opinions regarding secondary service connection; however, there is no opinion on direct service connection. The Veteran has a current diagnosis of obstructive sleep apnea, he has consistently reported experiencing snoring and other sleep apnea symptoms while in service, he has indicated his snoring and other symptoms continued after service, and there is otherwise insufficient competent medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, a VA examination is needed to determine whether the Veteran's obstructive sleep apnea is etiologically related to his service. While on remand, appropriate efforts must be made to obtain any further VA treatment records from July 2012 forward, as well as any further records identified and authorized for release by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Obtain any further VA treatment records from July 2012 forward. Also appropriate efforts must be made to obtain any further medical records identified and authorized for release by the Veteran. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide the records, if able. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination with an examiner of sufficient expertise to discuss the nature and etiology of his sleep apnea. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the examination report. After reviewing the file and examining the Veteran, the examiner should answer the following question: Whether is it at least as likely as not (a fifty percent probability or greater) that the Veteran's sleep apnea was otherwise incurred or aggravated in service? In forming the opinion, the examiner should consider the Veteran's lay statements concerning snoring in service and immediately after service. A detailed rationale supporting the examiner's opinion should be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which 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). _________________________________________________ BETHANY L. BUCK 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).