Citation Nr: 1804849 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 555A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a sleep disorder, to include sleep apnea with teeth grinding, to include as secondary to service-connected traumatic brain injury (TBI) and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to July 1978, from May 1979 to April 1983, and from December 2004 to June 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the RO characterized the claim as a petition to reopen the Veteran's claim for service connection for sleep apnea with teeth grinding. For the reasons discussed below, the Board finds that new and material evidence was received within one year of the previous September 2011 and May 2012 decisions on this issue. 38 C.F.R. § 3.156(b). As there has not been a final prior rating decision, the Board has recharacterized the issue as noted above. The Board notes that the Veteran requested a hearing before a Veterans Law Judge. In a May 2017 statement, the Veteran requested that his hearing before a member of the Board be canceled and his record forwarded to the Board for a decision to be made based on the evidence of record. Therefore, the Veteran's request for a hearing is deemed to be withdrawn and the Board may proceed to adjudicate the appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action is required. REMAND The Veteran first filed a claim for service connection for sleep apnea with teeth grinding in July 2011, secondary to his service-connected TBI. The claim was denied in a September 2011 decision. The Veteran filed a claim to reopen the appeal in March 2012. He submitted buddy statements dated in March 2012 indicating he had sleep apnea and teeth grinding symptoms in service. Under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). As the buddy statements are new and material evidence and were received within one year of the September 2011 decision, it did not become final. In a May 2012 decision, the RO again denied the Veteran's claim. In October 2012, the Veteran submitted a new statement with the new information that he and the fellow service members who had submitted buddy statements were all medics and therefore competent to report the Veteran's in-service symptoms. Social Security records and VA treatment records were also added to the claims file. As the new evidence is material to the Veteran's claim and was received within one year of the May 2012 decision, it did not become final. The RO denied the claim in a January 2013 rating decision, which the Veteran has appealed to the Board. As the previous rating decisions of record are not final, the Board finds that the issue before the Board is a claim for service connection for a sleep disorder, to include sleep apnea and teeth grinding. With respect to the need for a medical examination and opinion, the Board notes that the Veteran has been diagnosed with sleep apnea. As noted in an October 2012 memorandum, the Veteran's complete original service treatment records are not available for review. However, there is competent evidence indicating the Veteran had symptoms of a sleep disorder in service. The Veteran has stated and he has submitted buddy statements from fellow service members, S.D., B.Y., and I.H., indicating his sleep apnea and teeth grinding symptoms began in service. In an October 2012 statement, he noted that he and the service members who submitted statements were medics. The Veteran's statements and the buddy statements indicate he has had symptoms of sleep apnea since service. The Veteran has also alleged that the sleep apnea could be related to injuries he sustained in 1979 while playing football during service. The Veteran has also asserted that his sleep apnea has been aggravated by his service-connected PTSD and TBI. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under these circumstances, the Board finds that the requirements for obtaining a VA examination and opinion have been satisfied. Therefore, remand is required to obtain an examination and opinion. The record reflects that the Veteran receives VA treatment; however, the most recent VA treatment records contained in the Veteran's file are from September 2012. Therefore, upon remand, updated VA treatment records must be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records from September 2012 to the present. 2. After receiving all additional records, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of the Veteran's sleep disorder, to include sleep apnea and teeth grinding. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The examiner should clearly identify all current chronic disability(ies) of a sleep disorder, to include sleep apnea and teeth grinding, that have existed since July 2011. Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, on the following questions: A) Is it at least as likely as not (a 50 percent or greater probability) that a sleep disorder, to include sleep apnea and teeth grinding, is related to the Veteran's service, to include the sleep problems and teeth grinding noted in the December 2011 and March 2012 buddy statements, and/or injuries sustained while playing football in 1979? B) Is it at least as likely as not (a 50 percent or greater probability) that a sleep disorder, to include sleep apnea and teeth grinding, was caused by the Veteran's service-connected TBI and/or PTSD? C) Is it at least as likely as not (a 50 percent or greater probability) that a sleep disorder, to include sleep apnea and teeth grinding, was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran's TBI and/or PTSD? The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them a reasonable opportunity to respond. 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 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B (2012). ______________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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 this appeal. 38 C.F.R. § 20.1100(b) (2017).