Citation Nr: 1339134 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 13-09 137A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: James E. Fausone, Attorney at Law ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from May 1995 to May 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran claims service connection for obstructive sleep apnea as directly related to his period of active service. During the development of his claim, he was provided a VA examination in September 2009 wherein the VA examiner rendered a negative etiological opinion based, at least in part, on a lack of in-service symptomatology. As pointed out by the Veteran's representative, the Veteran had in fact submitted a statement addressing in-service symptomatology. While submitted prior to the VA examination, this statement was not received by VA nor associated with the claims file until after the examination; therefore, it was not available for review by the examiner. The examiner's negative etiological opinion is therefore inadequate for the purposes of determining service connection. Once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Veteran must be provided a new VA examination to determine whether his sleep apnea is etiologically related to his active service. As a final note, the Veteran reported undergoing a sleep study in August 2006, at which he was initially diagnosed with obstructive sleep apnea. It is unclear from the record whether this sleep study was conducted at a VA facility. However, the Board notes that VA treatment records dated between March 28, 2006, and July 22, 2008, have not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, outstanding VA treatment records are to be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request he identify any medical provider that has treated him for sleep apnea, specifically requesting he identify the facility at which the August 2006 sleep study was conducted. For any non-Federal treatment provider identified, the Veteran should be requested to complete and return the appropriate medical release authorization form. Then, reasonable efforts should be undertaken to obtain any such records identified. 2. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, records generated by VA facilities from March 28, 2006, to July 22, 2008, and from August 14, 2009, to the present must be obtained. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 3. Following the above, schedule the Veteran for a VA examination to identify the nature and etiology of his currently diagnosed obstructive sleep apnea. A complete copy of the claims file, including both the virtual and paper claims file, must be made available to the examiner for review, and the examination report should reflect such a review was accomplished. Any clinically necessary tests and/or consultations are to be accomplished. Following a review of the claims file and examination of the Veteran, the examiner is requested to provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that any current obstructive sleep apnea is etiologically related (incurred in, caused or aggravated by) the Veteran's active service. In rendering this opinion, the examiner must address the credible lay statements from the Veteran and his friend regarding in-service symptomatology. A full and complete rationale must be provided for all opinions expressed. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2013). _________________________________________________ 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).