Citation Nr: 1646500 Decision Date: 12/12/16 Archive Date: 12/21/16 DOCKET NO. 12-02 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD. 2. Entitlement to an initial rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1983 to April 1992, to include service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A November 2011 rating decision increased the Veteran's rating for PTSD from 50 percent to 70 percent effective January 9, 2009. At the Veteran's request and pursuant to a December 2012 Board remand, an April 2013 videoconference hearing was scheduled before the Board, but the Veteran failed to report. Thus, the Board considers his hearing request withdrawn. The matter was previously before the Board in December 2012 and May 2015 and remanded for further development. In July 2016, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in September 2016. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a September 2016 statement, the Veteran reported additional medical evidence can be obtained from VAMC Miami. The claims file contains records from the VAMC Miami through June 2015. All subsequent treatment records from the VAMC Miami are not in the claims file and must be obtained on remand. 38 C.F.R. § 3.159(c); Sullivan v. McDonald, 815 F.3d 786 (2016). In light of this additional evidence, a VA examination is warranted to properly assess the current severity of the Veteran's PTSD. The AOJ should afford the Veteran the opportunity to submit any additional, pertinent lay statements relating to his claim. As to the obstructive sleep apnea claim, the AOJ should afford the Veteran the opportunity to submit additional, pertinent lay statements regarding his in-service and post-service symptoms of obstructive sleep apnea and an account of when his obstructive sleep apnea symptoms began. The RO should ask the Veteran to identify any additional, pertinent medical treatment for PTSD and obstructive sleep apnea. Any additional, pertinent VA or private treatment records should be associated with the file. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's treatment records from the VAMC Miami since June 2015. Any negative response should be in writing and associated with the claims file. If advised that these records are unavailable, issue a Formal Finding of Unavailability and notify the Veteran. 2. Request that the Veteran identify any additional outstanding VA or private treatment records pertaining to his claims. Take appropriate measures to obtain copies of any outstanding records of pertinent VA or private medical treatment the Veteran identifies. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms of obstructive sleep apnea and an account of when the Veteran's obstructive sleep apnea began as well as the nature, extent and severity of his psychiatric disability. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Provide the Veteran with a VA examination to determine the current nature and severity of his PTSD. The claims file must be reviewed by the examiner and all necessary tests should be conducted. 5. Then readjudicate the issues on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. 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). _________________________________________________ STEVEN D. REISS 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).