Citation Nr: 1545561	
Decision Date: 10/27/15    Archive Date: 11/02/15

DOCKET NO.  11-033 17	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Dustin Ware, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1984 to January 1992.  
This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran claims entitlement to service connection for sleep apnea.  The evidence of record includes a letter from a Dr. J.R. stating that the Veteran suffers from chronic sleep apnea.  April 2010 Letter from Dr. J.R.  The Veteran's wife has submitted a letter indicating that she has known the Veteran since service and for as long as she has known him he awakens tired despite getting eight to twelve hours of sleep and he sometime stops breathing during sleep.  

The VA has a duty to provide an 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) (2015); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Therefore, it is necessary that a VA examination be conducted to determine whether the Veteran's current sleep apnea is related to active duty service.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of his sleep apnea.  All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail.  The claims file should be made available for review in connection with the examination. 
The examiner is requested to address the following: 

Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's sleep apnea is etiologically related to his active duty service.

In providing an opinion the VA examiner is asked to address the February 2009 statement of the Veteran's wife discussing what she has observed during the Veteran's sleep.  

The examiner is requested to provide a complete rationale for any opinion expressed based on the examiner's 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. 

2. 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 2014).



_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).