Citation Nr: 1630000 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 11-26 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from February 1983 to April 1988 with additional service in the United States Air Force Reserve. This appeal came before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Veteran testified at a videoconference hearing before an Acting Veterans Law Judge. A transcript of the hearing is of record. In a March 2016 letter, the Board informed the Veteran that the Acting Veterans Law Judge who presided at the October 2012 hearing was currently unavailable to participate in a decision in his appeal and informed him of his options for another Board hearing. He was also informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly. The Veteran did not respond to the March 2016 letter. Therefore, the Board will proceed to consider the Veteran's case on the evidence of record. When this case was most recently before the Board in July 2013, it was remanded for further development and adjudicative action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND While further delay is regrettable, the Board finds that additional development is required. The Board notes that the Veteran was diagnosed with sleep apnea in November 2008. As the Veteran had 13 days of active duty for training (ACDUTRA) from April 2008 to April 2009, development to determine whether the Veteran was on ACDUTRA in November 2008 is needed. Regarding the Veteran's claimed low back disability, the Board notes that the August 2013 VA examiner found that the Veteran's current degenerative disc disease was "less likely" related to his active service, in significant part, because of a lack of documentation of complaints or treatment following discharge from active service. Subsequent to that examination, the Veteran submitted treatment records from his chiropractor, noting treatment as early as December 2005. Accordingly, an addendum opinion that addresses these records is necessary. Relevant ongoing medical 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 to the AOJ for the following actions: 1. The AOJ should undertake appropriate development through official sources to attempt to verify whether the Veteran was on ACDUTRA in November 2008. All actions should be documented in the claims file. 2. Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private, who have recently treated him for his back and sleep apnea. After securing any necessary releases, the AOJ should request any relevant records identified. If any requested records are unavailable, the Veteran should be notified of such. 3. Return the claims file to the VA examiner who conducted the August 2013 examination, if available, to obtain an addendum opinion. If that examiner is no longer available, the file should be provided to an examiner of similar or greater qualifications to obtain the requested opinion. If a new examination is deemed necessary to respond to the question presented, one should be scheduled. Following review of the claims file, to include the results of the August 2013 examination, the examiner should indicate whether review of the chiropractic records showing treatment from 2005 to 2011 changes the conclusion that the low back disability is less likely as not related to the Veteran's active duty service. In addition, the examiner should address the November 2012 statement from the Veteran's chiropractor opining that the Veteran's back disability is as likely as not the result of repetitive stress caused by activities such as running and lifting while wearing heavy packs in the military. 4. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, 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). _________________________________________________ K. A. BANFIELD 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).