Citation Nr: 1339853 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-17 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an effective date prior to December 4, 2007, for a 50 percent evaluation for obstructive sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from February 1992 to August 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Baltimore, Maryland, regional office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed the Veteran's electronic record (Virtual VA and VBMS) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to 50 percent evaluation for his obstructive sleep apnea prior to December 4, 2007. He argues that the July 2000 rating decision which assigned a zero percent evaluation from the initial date of service connection in August 14, 1999 contains clear and unmistakable error. The Veteran believes that the evidence considered by the July 2000 rating decision shows that he was prescribed and using a CPAP machine at that time, that this met the criteria for a 50 percent evaluation, and that it was clear and unmistakable error not to have assigned the 50 percent evaluation based on the use of the CPAP machine. In the alternative, the Veteran contends that his VA treatment records show that he was using a CPAP machine prior to December 4, 2007, and that these records constitute one or more unaddressed informal claims for an increased evaluation that would provide a basis for a 50 percent rating prior to December 4, 2007. The Veteran offered testimony before the undersigned Veterans Law Judge in June 2013. He testified that he had received treatment from the VA for his sleep apnea in Washington State from 1999 to 2000, which was shortly after he was discharged from service. He also testified that had received treatment for his sleep apnea from a VA facility in Durham, North Carolina in 2006 or later, and that he had received treatment for his apnea from a VA facility in Washington, D.C. around 2005 or 2006. See transcript, pages 10 to 11. A review of the claims folder and the electronic record shows that the VA treatment records cited by the Veteran at his hearing have not been obtained. The Board agrees that it is possible these records could show treatment for sleep apnea, and that they might constitute an informal claim for an increased rating. See 38 C.F.R. § 3.157 (2013). An attempt must be made to obtain these records prior to adjudicating the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records pertaining to the treatment of the Veteran's sleep apnea that have not previously been obtained and associate them with the claims folder. This should include records from Washington State, dating from approximately 1999 to 2000; Washington, D.C., dating from 2005 to 2006; and Durham, North Carolina, dating from 2006 to 2007. If attempts to obtain records from any three of these locations are unsuccessful, all requests should be documented in the claims folder and, after all attempts have been exhausted, a formal finding as to their availability should be placed in the claims folder. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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). _________________________________________________ ERIC S. LEBOFF 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).