Citation Nr: 1340562 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-28 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1986 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS systems to ensure review 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 After having carefully considered the matter of entitlement to service connection for an both issues on appeal, the Board believes the Veteran's claim must be remanded for further development. With respect to the Veteran's claim for entitlement to service connection for sleep apnea, the Board finds that the February 2010 VA examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner concludes, after reviewing the claims file, that the Veteran's "recently diagnosed sleep apnea is not related to any documented active duty problems." The examiner fails to address the Veteran's lay statements regarding his frequent snoring both in service and immediately after service. While the Veteran is not competent to opine on matters requiring medical knowledge, he and other lay persons are competent to provide lay evidence concerning a continuity of symptoms after service, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board notes that the examiner makes note of these statements in the medical history, but fails to address them in the opinion portion of the examination. As a result, a clarifying opinion addressing these lay statements is necessary to determine whether the Veteran's currently diagnosed sleep apnea is etiologically related to his active duty military service. Accordingly, the case is REMANDED for the following action: 1. Arrange for another VA examination with an appropriate examiner. The examiner should review the entire claims file, including the multiple lay statements from the Veteran and the Veteran's acquaintances regarding his snoring and breathing problems during and after service. The examiner should also elicit a full history directly from the Veteran regarding any in-service symptomatology believed to be related to his claimed sleep apnea. The examiner should conclude whether it is at least as likely as not (50 percent or greater) that the appellant's sleep apnea had its onset in service or is otherwise related to his military service. In the examiner's opinion, the Veteran's lay statements should be addressed. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any other development deemed appropriate, the RO will re-adjudicate the issues on appeal. If any benefit sought is not granted, the appellant and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ MICHAEL LANE 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).