Citation Nr: 1341002	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  12-32 682	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran had active service from July 1982 to July 2002.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the appellant if further action is required.


REMAND

In his initial claim, the Veteran argued that he had sleep apnea that was secondary to his service-connected asthma.  An August 2010 VA opinion concluded that while there was a correlation between the two disabilities, sleep apnea was not caused by or the result of asthma.  However, the examiner did not comment on whether asthma aggravated sleep apnea.  Therefore, a supplemental opinion is required.

In addition, the Veteran has since offered statements arguing that his sleep apnea began in service.  Therefore, in providing the supplemental opinion, the examiner should also offer an opinion as to whether sleep apnea is directly related to service.

Accordingly, the case is REMANDED for the following action:

1.  The claims file should be forwarded to the August 2010 examiner who provided the VA opinion regarding sleep apnea for a supplemental opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is aggravated by asthma.

The term "aggravated" in the above context refers to a permanent worsening of sleep apnea, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

The examiner should also review the claims file, including the Veteran's service treatment records, and offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea began during service, or is otherwise related to the Veteran's period of service.

A complete explanation should be provided for all opinions.  If the examiner cannot provide an opinion without resorting to speculation, he should state why this is the case.

If the August 2010 VA examiner is not available, then the claims file should be forwarded to another VA examiner, who must comply with the above instructions.  If any examiner determines that another VA examination is necessary to provide the requested opinions, then one should be scheduled.

2.  Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full.  In particular, the AMC/RO should determine whether the examiner has responded to all questions posed.  If not, the report must be returned for corrective action.

3.  After the requested development has been completed, the AMC/RO should adjudicate the merits of the Veteran's claim for service connection for sleep apnea based on all the evidence of record, including any additional information and further development obtained as a result of this remand.  If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

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).



_________________________________________________
KELLI A. KORDICH
Acting 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).