Citation Nr: 1751296 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-36 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife. ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Army from July 1986 to April 1992 and from July 2006 to October 2008, with service in the Southwest Asia theater of operations during the Persian Gulf era. The Veteran also had service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge at a June 2017 Board videoconference hearing, and a transcript of the hearing is of record. For reasons discussed below, this appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) for further development. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that his currently diagnosed sleep apnea is etiologically related to his active duty service in Kuwait and Iraq from 2006 to 2008. See August 2010 Notice of Disagreement (NOD). A review of the evidence of record shows that the Veteran was diagnosed with sleep apnea following a sleep study in December of 2009. See December 2009 Sleep Labs of Memphis Preliminary CPAP Report. VA medical records document subsequent treatment for sleep apnea. Service Treatment Records (STRs) from 2006 to 2008 reflect treatment for congestion and sinus problems, and in an April 2009 post-deployment health re-assessment (PDHRA), the Veteran reported trouble sleeping or still feeling tired after sleeping. In his August 2010 NOD and during his June 2017 hearing, the Veteran testified that he never had trouble sleeping prior to his deployment in 2006, that he first experienced sleep trouble while deployed, and that his sleep problems continued once he returned. His wife testified that the Veteran snored excessively and stopped breathing while sleeping after he returned from deployment, whereas he had not had these issues before. See June 2017 Hearing Transcript. In light of the Veteran's current diagnosis of sleep apnea, as well as the competent and credible private medical and lay evidence indicating that the Veteran may have developed sleep apnea while on active duty, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of his currently diagnosed sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the record indicates that VA is on notice of the fact that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. See August 2014 SSA Request for Information. Moreover, the Veteran testified at his Board hearing that he would be obtaining additional medical records from a private doctor he was seeing concerning his sleep apnea within a year of his return from deployment. Consequently, remand is also necessary in order to obtain SSA records and private medical records that may provide additional information concerning the etiology of the Veteran's disability. Accordingly, the case is REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, including records of any private treatment the Veteran received for his sleep apnea and associated symptoms immediately following his return from deployment. 2. Obtain a copy of any Social Security decision awarding or denying disability benefits for the Veteran, copies of all medical records upon which any such Social Security disability benefit award was based, and a copy of any medical records associated with any subsequent disability determinations by SSA for the Veteran. All requests for records and their responses should be associated in the claims folder. 3. Then, schedule the Veteran for a VA examination to determine the etiology of his currently diagnosed sleep apnea. The examiner should be provided with the Veteran's complete claims file, including a copy of this remand. The file must be reviewed in its entirety and the report should note that review. Specifically, the examiner must provide a detailed opinion concerning the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed sleep apnea was incurred during active service? The examiner should assume that the Veteran and his spouse are credible historians and should consider their lay testimony. A complete rationale should be provided for any opinion or conclusion expressed. 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. If the examiner is unable to render the requested opinion without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be so provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 4. Then, readjudicate the appeal. If the benefit remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, return the appeal to the Board, as warranted. 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). _________________________________________________ LANA K. JENG 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).