Citation Nr: 1800513 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-11 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from December 1967 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for sleep apnea. He was diagnosed with obstructive sleep apnea in March 2011 based on a sleep study from VA treatment. The Veteran wrote in June 2011 that he had been having difficulty sleeping for 42 years. Given that the Veteran's active service was from December 1967 to June 1971, he has effectively reported having sleep difficulty since service. The Veteran is competent to report difficulty sleeping. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board finds his statement to be credible. Since the record shows that the Veteran had difficulty with sleep during service and he has been diagnosed with sleep apnea, he must be scheduled for a VA examination before the claim can be decided on the merits. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA treatment records to May 2011 have been associated with the claims file. The RO should therefore attempt to obtain all relevant VA treatment records dated from May 2011 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records dated from May 2011 to the present. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of sleep apnea. The reviewer must be given full access to the Veteran's complete VA claims file and the Veteran's electronic records for review. The reviewer must specifically note on the report whether the Veteran's VA claims file was reviewed in connection with this examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should assume that the Veteran's report of having difficulty sleeping since around 1969 is credible. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is related to service or was incurred in service. 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 conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. The reviewer must include in the medical report the rationale for any conclusions expressed, to include descriptions of the medical processes involved and citation to relevant medical literature/treatise as necessary. A report containing unsupported/unexplained conclusions will be returned as inadequate. If the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 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. §§ 5109B, 7112 (2012). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).