Citation Nr: 1803419 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 09-29 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran is represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1982 to August 1984, from December 1990 to July 1991, February 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2016 and March 2017 and was remanded for further development. The case has been returned to the Board for further appellate action. In June 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for obstructive sleep apnea, which he asserts had its onset during his most recent period of active duty, or alternatively, was caused or aggravated by his service-connected cervical spine disability. Service treatment records show no treatment for or diagnosis of sleep apnea during service. Subsequent Army Reserve treatment records show that the Veteran reported symptoms of snoring in May 2005, November 2005, and June 2006. In September 2006, the Veteran told his primary care provider that his wife told him that he stopped breathing in his sleep. He was referred for a sleep study and diagnosed with severe obstructive sleep apnea in July 2007. The Veteran underwent a VA examination in June 2015, at which time he reported first being told that he snored loudly and had apneic episodes during his 2003 deployment to Iraq. The examination report indicates that the Veteran's symptoms were noted "immediately with the deployment as he had to share common sleeping areas" and that he was "not sure when the symptoms developed between 1991 and 2003." The examiner opined that the Veteran's obstructive sleep apnea was not incurred in or caused by service because it preexisted his most recent period of active duty. In support of this, the examiner explained that based on the Veteran's reported history, "his obstructive sleep apnea symptoms were clearly noted by his fellow service members when he was activated and deployed in 2003," when he was not on active duty. However, the record shows that the Veteran was called to active duty in February 2003 and served in Iraq from April 2003 to April 2004. As he reported that his symptoms were first noted during his 2003 deployment to Iraq, he was on active duty at the time. As the record does not show any complaints of, treatment for, or diagnosis of sleep apnea prior to the Veteran's most recent period of active duty, the Board finds that a remand is necessary in order to obtain another medical opinion. Additionally, the record contains service treatment records and Army Reserve treatment records dated 1982 through 2006. However, a review of those records reveals no entrance or separation examinations from the Veteran's most recent period of active duty. Therefore, on remand, the AOJ should attempt to obtain any outstanding service treatment and Army Reserve treatment records, to specifically include entrance and separation examinations from the Veteran's period of active duty from February 2003 to April 2004. See 38 C.F.R. § 3.159(c)(2) (2017). Accordingly, the case is REMANDED for the following action: 1. Request through official sources complete service treatment records and Army Reserve treatment records, to specifically include entrance and separation examinations from the Veteran's period of active duty from February 2003 to April 2004. If such records cannot be obtained, a formal finding of whether further attempts to request the records would be futile should be made and the Veteran notified of such. 2. Provide the claims file, including any records received pursuant to this remand, to an appropriate examiner to obtain a supplemental opinion with respect to the Veteran's service connection claim for obstructive sleep apnea. If another examination is deemed necessary to respond the question, one should be scheduled. After a review of the claims file, the examiner should answer the following: a. Is it at least as likely as not (50 percent or higher probability) that the Veteran's obstructive sleep apnea arose during his period of active duty from February 2003 to April 2004 or is otherwise related to service? Please explain why or why not. The examiner's opinion should reflect consideration of the Veteran's report of being told by fellow soldiers that he snored loudly and had apneic episodes during his 2003 deployment and again by his wife shortly after his deployment, as well as Army Reserve treatment records showing that the Veteran reported symptoms of snoring in May 2005, November 2005, and June 2006, and was referred for a sleep study in September 2006, which led to a diagnosis of severe obstructive sleep apnea. b. Is it at least as likely as not (50 percent or higher probability) that the Veteran's obstructive sleep apnea was caused by his service-connected cervical spine disability? Please explain why or why not. c. Is it at least as likely as not (50 percent or higher probability) that the Veteran's obstructive sleep apnea was aggravated (worsened beyond normal progression) by his service-connected cervical spine disability? Please explain why or why not. d. If the examiner finds the obstructive sleep apnea was worsened beyond normal progression by the cervical spine disability, the examiner should attempt to quantify the degree of worsening beyond the baseline level of the sleep apnea that is due to the cervical spine disability. 3. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and provided 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. §§ 5109B, 7112 (2012). _________________________________________________ K. A. BANFIELD 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).