Citation Nr: 1750136	
Decision Date: 11/03/17    Archive Date: 11/13/17

DOCKET NO.  09-43 428	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for sleep apnea. 
 

ATTORNEY FOR THE BOARD

P. Daugherty, Associate Counsel


INTRODUCTION

The Veteran served in the United States Army with active duty from February 1987 to February 2007. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  Jurisdiction was subsequently transferred to the RO in Pittsburgh, Pennsylvania.  

In October 2009, the Veteran filed a Substantive Appeal in which he requested a Board hearing before a Veterans Law Judge.  In a September 2012 correspondence, the Veteran withdrew the hearing request.  The request is deemed withdrawn and the Board will proceed with adjudication of the issues on appeal.  38 C.F.R. § 20.704(d)(2017). 

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


REMAND

While the Board sincerely regrets further delay, additional development is required before the Veteran's claim may be adjudicated on the merits. 

To date, the Veteran has not been afforded a VA examination with respect to his claim for entitlement to service connection for sleep apnea.  In the present case, the Veteran has a current diagnosis, which was received 11 months after service, and lay statements regarding the possibility of the onset of his current disability in service.  The Board also finds that the current evidence of record does not contain sufficient competent medical evidence to decide the service connection claim as it stands.  Therefore, the Board finds that providing the Veteran with an examination for the purposes of determining the etiology of the Veteran's current disability is appropriate in this case.  38 C.F.R. § 3.159(c)(4)(2016); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA treatment records from August 2015 to present and associate them with the record.  

2.  Once any outstanding treatment records have been obtained, schedule the Veteran for a VA examination with the appropriate medical personnel to determine the etiology of his sleep apnea.  The veteran's claims file, along with a copy of this remand, should be made available to the examiner and after a review of the record, the examiner is asked to provide the following opinion:

Whether it is at least as likely as not that the Veteran's current sleep apnea had its clinical onset in service or is otherwise related to any in-service disease, event, or injury, to include any in-service snoring or respiratory difficulties.

In offering this opinion, the examiner should acknowledge and discuss the significance, if any, of the lay statements of record provided by the Veteran and his spouse regarding the onset of his symptomatology.  

A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicated this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation

3.  Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal.  If any benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case, afforded a reasonable opportunity to respond, and the case should then be returned to the Board for further appellate review, if otherwise in order.


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).




_________________________________________________
Michael J. Skaltsounis
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) (2016).