Citation Nr: 1615912 Decision Date: 04/20/16 Archive Date: 04/26/16 DOCKET NO. 13-01 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected residuals of stress fracture of the right femoral neck. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to January 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, FL. A videoconference hearing was held before the undersigned Veterans Law Judge in February 2016. A transcript of the hearing is of record. At the hearing, the Veteran submitted a private medical opinion directly to the Board. He also provided a waiver of the Agency of Jurisdiction's (AOJ) initial consideration of that evidence. In addition, the Board held the record open for 30 days following the hearing to provide the Veteran with an opportunity to submit additional evidence. The Veteran submitted additional documents through his representative in March 2016. The Veteran again waived initial review by the AOJ with his submission. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the records in VBMS or irrelevant to the issue on appeal. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran has not been afforded a VA examination in connection with his claim for service connection for sleep apnea. In December 2006, the Veteran underwent a sleep study at which time he was diagnosed as having severe obstructive sleep apnea with significant disruption of normal sleep architecture. He has claimed that his sleep apnea began in service. See July 2010 VA form 21-526. Moreover, the Veteran's wife, ex-wife, and military roommates have provided statements attesting to his symptomatology in service and thereafter. See March 2016 lay statements. His service treatment records also show that the Veteran complained of feeling fatigued or tired on multiple occasions. See July 1995 service treatment record; November 1995 service treatment record; June 1996 service treatment record. Further, the Veteran has asserted that his service-connected right hip disorder has affected his sleep as well. See Board Hearing Tr. at 14. The Board does acknowledge the February 2016 private medical opinion indicating that the Veteran's sleep apnea was most likely caused by or a result of his military service. In so doing, the physician stated that the condition was present during the Veteran's period of active duty even though he was not diagnosed until 2006. Although he indicated that he reviewed the treatment records since the Veteran's separation from service, the physician did not check the box indicating that he had reviewed the service treatment records. Notably, the service treatment records include a November 1966 report of medical history in which the Veteran denied having trouble sleeping. For these reasons, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of the Veteran's sleep apnea. In addition, the Board notes that the RO sent the Veteran a notice letter in July 2010; however, that did not inform the Veteran of the evidence and information necessary to substantiate a claim on a secondary basis. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (failure by Board to enforce compliance with VA notice requirements of 38 U.S.C.A. § 5103(a) is remandable error). Thus, the Veteran should be provided proper notice on remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should send the Veteran a notice letter in connection with his claim for service connection for sleep apnea. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claim; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. The letter should also explain how disability ratings and effective dates are determined. Specifically, the letter should notify the Veteran of the evidence necessary to substantiate the claims on both a direct and secondary basis. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for sleep apnea. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records. 3. After completing the above development, the Veteran should be afforded a VA examination to determine the nature and etiology of his sleep apnea. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, service personnel records, post-service medical records, and lay assertions, to include statements from his wife, ex-wife, and military roommates. It should be noted that the Veteran and other laypersons are competent to attest to matters of which they have first-hand knowledge, such as observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran and the other laypersons, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current obstructive sleep apnea manifested in or is otherwise related to his military service. In providing this opinion, the examiner should address whether the reported in-service symptoms, including fatigue and snoring, were early manifestations of his current sleep apnea. The Veteran's wife, ex-wife, and military roommates have provided statements attesting to his symptomatology in service and thereafter. See March 2016 lay statements. His service treatment records also show that the Veteran complained of feeling fatigued or tired on multiple occasions. See July 1995 service treatment record; November 1995 service treatment record; June 1996 service treatment record. However, a November 1966 report of medical history shows that the Veteran denied having trouble sleeping. In addition, the examiner should state whether it is at least as likely as not that the Veteran's service-connected residuals of stress fracture of the right femoral neck either caused or permanently aggravated his sleep apnea. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. In the event that the Veteran does not report for the scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address and to his representative. It should also be indicated whether any notice sent was returned as undeliverable. 5. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 6. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 7. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issue on appeal. If the benefits sought are not granted, the AOJ should issue a supplemental statement of the case (SSOC) and allow the Veteran and his representative an opportunity to respond. This SSOC should set forth the provisions of 38 C.F.R. § 3.310. 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). _________________________________________________ J.W. ZISSIMOS 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).