Citation Nr: 1340799 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-32 786 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 30 percent for the service-connected sleep apnea. ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1990 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the RO. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In a January 2011 rating decision, the RO granted service connection and assigned a 10 percent disability rating for psoriasis (also claimed as skin rash), effective on October 1, 2010. This appeal is remanded to the RO. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that his service-connected sleep apnea warrants a higher disability rating. The Veteran is currently assigned a 30 percent disability rating, which requires persistent day-time hypersomnolence. 38 C.F.R. § 4.97, Diagnostic Code 6847. In order to warrant a 50 percent rating, the use of a breathing assistance device such as continuous airway pressure (CPAP) machine is required. Id. The Veteran's service treatment records show an overnight sleep study was conducted in January 2005. The treatment options included CPAP, otorhinolaryngology surgery consultation, or oral appliance. The treatment record noted that if CPAP therapy was chosen, it would be provided for him. In April 2010, the Veteran had a sleep study that revealed sleep apnea. The Veteran requested a second study for CPAP titration. The study for CPAP titration was not associated with the claims file. The Board notes that the Veteran brought a sleep study dated later in April 2010 to a subsequent examination, which was likely the CPAP titration study. On examination in September 2010, the examiner rendered a diagnosis of sleep apnea and noted there were no current medications or treatments reported. The examiner did not address whether any medications or treatments were necessary. As such, any outstanding medical treatment records or VA treatment records, including a CPAP titration study, should be obtained and associated with the claims file. The Veteran should also be scheduled for an examination to determine the current severity of his sleep apnea and whether the use of a breathing assistance device such as CPAP is required. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate action to contact the Veteran so that he can identify any healthcare provider who treated or evaluated him for sleep apnea. After securing any necessary authorization from him, the RO should obtain copies of any identified records not already contained in the claims file, to include any outstanding VA treatment records and service treatment records referable to sleep apnea, specifically a CPAP titration study dated April 21, 2010. 2. The RO should then have the Veteran scheduled for a VA examination to determine the current severity of his service-connected sleep apnea. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. In so doing, the examiner should determine whether the use of a breathing assistance device such as a CPAP machine is required. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all of the evidence of record. If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity to respond. Thereafter, if necessary, the case should be returned to the Board for appellate disposition. 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. 2013). _________________________________________________ STEPHEN L. WILKINS 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).