Citation Nr: 1546117 Decision Date: 10/30/15 Archive Date: 11/10/15 DOCKET NO. 12-33 388A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for obstructive sleep apnea REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Vazquez Diaz, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2004 to December 2005. The Veteran also served in the Air Force Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that denied service connection for obstructive sleep apnea. In an April 2010 statement, the Veteran stated that there was clear and unmistakable error in a January 2009 rating decision that denied his claims for service connection for syncope, elevated blood pressure, tinnitus, chronic headaches, sinusitis, allergic rhinitis, and pseudofolliculitis barbae. It does not appear that the RO has addressed this claim. Accordingly, this matter is REFERRED to the RO for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is necessary prior to appellate review. The Veteran is seeking service connection for sleep apnea, which he states began during active duty service. A November 2005 Post Deployment Health Assessment shows that the Veteran reported still feeling tired after sleeping. An April 2011 VA treatment record reflects that the Veteran has been diagnosed with sleep apnea. The Veteran has not yet been provided with VA examination with respect to his claim for service connection for obstructive sleep apnea. Because there is an indication that the Veteran reported feeling tired after sleeping while in service and he has a current diagnosis of sleep apnea, the Board finds that the low threshold of the McLendon has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of his claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Relevant ongoing VA treatment records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private, who have treated him for his sleep apnea since 2005. After securing any necessary releases, request any identified records that are not duplicates of those already contained in the claims file. If any requested records are not available, the Veteran and his representative should be notified of such. 2. Obtain all relevant VA treatment records dated from October 2012 to the present. 3. After the above development has been completed, schedule the Veteran for a VA sleep apnea examination. The claims file should be reviewed by the examiner. All tests and studies deemed necessary should be conducted and the results reported in detail. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea began during service or is otherwise related to service. In rendering the opinion, the examiner should discuss the significance of the Veteran's in-service report(s) of being tired after sleep or of having frequent trouble sleeping. The rationale for any opinion expressed should be set forth. 4. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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 2014). _________________________________________________ S. HENEKS Acting 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) (2015).