Citation Nr: 1419235 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 09-25 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1993 to May 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claim. The RO in Roanoke, Virginia, currently has jurisdiction of the claim. Additional evidence was submitted after the RO last considered the merits of the case and has been associated with the claims folder; however, there is no waiver of consideration of that evidence by the RO. 38 C.F.R. § 20.1304 (2013). As the claim is being remanded for other reasons, the RO should review the most recent submissions, which are private medical records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDING OF FACT Additional evidence had been received by VA but was not associated with the claims file at the time of the October 11, 2012 Board decision. CONCLUSION OF LAW The October 2012 decision in this matter is vacated. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2013). A Board decision was issued on October 11, 2012, which denied the Veteran's claim for service connection for sleep apnea. It was discovered that pertinent evidence had been received by the RO prior to the issuance of the October 2012 decision but that had not been associated with the claims file. Thus, that evidence was constructively in the possession of VA and should have been considered by the Board. In this case issuance of a decision without consideration of the additional evidence was a denial of due process. Accordingly, the Board vacates its October 2012 decision in this matter. See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.904. ORDER The Board's October 11, 2012 decision in the above-captioned appeal is vacated. REMAND The Veteran contends that she has sleep apnea that began in service. Service treatment records reveal that the Veteran underwent a sleep study in April 2004. The impression following the study was obstructive sleep apnea as well as snoring with arousals. A trial of nasal CPAP was recommended. A CPAP and other equipment were prescribed in May 2004. Another sleep study was performed in March 2006. The Veteran was assessed with primary snoring, but there was no significant sleep related breathing disorder present. Despite the foregoing, a September 2006 health record references a diagnosis of sleep apnea. The Veteran underwent a VA examination in July 2007 in conjunction with her claim for service connection. The examiner noted that the March 2006 sleep study did not institute a CPAP at that time; that the lowest O2 saturation was at 92 percent; and that the impression was primary snoring, no significant sleep-related breathing disorder present. Following physical examination, the examiner indicated that she was unable to render a diagnosis of sleep apnea in the absence of objective evidence on clinical examination. A September 2009 polysomnogram report is associated with an August 2009 VA examination report. It was noted that the study did not support a diagnosis of sleep disordered breathing; that the Veteran had only one scorable respiratory event and few, if any, respiratory effort related arousals (RERAs) were seen; and that no snoring was noted by the technician. In August 2012, the Veteran submitted medical evidence from a private physician. "Dr. A.J.B." conducted polysomnogram studies in September 2011 and December 2011. The impression after both studies was obstructive sleep apnea hypopnea syndrome and a CPAP machine was recommended. However, Dr. A.J.B. did not offer an opinion on the etiology of the Veteran's reported sleep disorder. A remand is required in order to obtain an addendum VA medical opinion on the etiology of the Veteran's claimed sleep apnea. It is unclear whether the sleep disorder diagnosed by Dr. A.J.B. is related to the sleep problem diagnosed in April 2004 that was not diagnosed after sleep studies conducted in March 2006 and September 2009. Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for an addendum VA opinion from an examiner with appropriate expertise. The claims file and a copy of this remand should be made available to the examiner for their review. Based on the current review of the record, including the Veteran's sleep studies conducted in April 2004, March 2006, September 2009, and the private sleep studies conducted in August and December 2011, the examiner should answer the following question: Is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed sleep apnea is etiologically related to the Veteran's active military service, including that this condition had its onset during the Veteran's military service? The VA examiner is requested to provide a thorough rationale for all the opinions provided. In providing the opinion, the examiner should address the significance of the April 2004 diagnosis of sleep apnea, the March 2006 and September 2009 findings that there was no diagnosis of sleep apnea, and the private physician's diagnosis of sleep apnea in September and December 2011. If it is determined that the requested opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed condition. 2. After completion of the above, readjudicate the issue on appeal based on all the evidence of record. If any benefit remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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). _________________________________________________ M. E. LARKIN 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).