Citation Nr: 1342473	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO.  12-20 082	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for obstructive sleep apnea.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J.M. Seay, Counsel


INTRODUCTION

The Veteran served on active duty from March 1977 to March 1999.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran requested a local hearing in connection with his appeal.  However, in a report of contact with RO personnel, he stated that he no longer wanted a hearing.  In addition, on his VA Form 9, the Veteran indicated that he did not want a BVA hearing and did not request a hearing at a local VA office.  Therefore, the hearing request is withdrawn.  38 C.F.R. § 20.704(e) (2013).

To the extent that additional evidence has been associated with the claims file following the most recent statement of the case, the Veteran signed and submitted an expedited processing form, waiving his right to have additional evidence considered by the Agency of Original Jurisdiction (AOJ) on remand.  See 38 C.F.R. §  20.1304(c) (2013).

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 was provided a VA examination in April 2012.  The examiner reviewed the entire claims file.  However, the examiner referred to review of electronic medical records from the Brooke Army Medical Center (BAMC) in San Antonio, Texas and noted a January 2011 otorhinolaryngology consultation.  These records are not associated with the claims file.  38 U.S.C.A. § 5103A; see Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them).  As these records were noted by the examiner in connection with providing an opinion as to the etiology of the Veteran's sleep apnea to include relating his in-service snoring to his deviated septum, the Veteran's claim must be remanded to obtain the identified records.   

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and ask him to provide authorization for VA to obtain any outstanding treatment records from the Brooke Army Medical Center in San Antonio, Texas.  All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented.  The Veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records.

2.  After completion of the above, the RO/AMC should review the record and determine if service connection may be granted.  If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review, if otherwise in order.


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).



_________________________________________________
U.R. POWELL
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).