Citation Nr: 1340807 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 12-12 834 ) 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: Marine Corps League ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from February 1986 to February 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 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 claims service connection for obstructive sleep apnea as directly related to his period of active service. Specifically, he notes that he suffered a number of breathing difficulties, including sinus problems, a deviated septum, and snoring, which he contends led to the development of his current disability. He also notes he was exposed to a variety of substances, including paint chips and dust, that also may have contributed to his current sleep apnea. The Veteran has not yet been provided a VA examination in conjunction with his claim. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In support of his claim, the Veteran has submitted a June 1996 treatment record, dated approximately four months following service separation, noting a diagnosis of rule out sleep apnea. He has also submitted lay statements indicating a long history of loud snoring at night. A diagnosis of sleep apnea was confirmed by a March 2010 sleep study, and the Veteran was placed on CPAP treatment. This evidence is sufficient to "indicate" the Veteran's current sleep apnea may be related to his active service, thus triggering VA's duty to provide him an examination under the low threshold established by McLendon. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file any VA treatment records generated since January 21, 2011. 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. 2. Schedule the Veteran for a VA examination to address the nature and etiology of his sleep apnea. The claims file, including this remand, must be made available to the examiner for review. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. After reviewing the record and examining the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's current sleep apnea is etiologically related to (incurred in, caused or aggravated by) his period of active service. In offering this opinion, the examiner is requested to comment on the Veteran's assertions of in-service symptomatology and chemical/dust exposure. The examiner is requested to provide a complete rationale for any opinion expressed based on clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. 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).