Citation Nr: 1804985 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-23 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from August 1987 to October 2007. This appeal to the Board of Veterans' Appeals (Board) is from a March 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2016, the Veteran had a personal hearing before the undersigned VLJ regarding this issue. The Board notes that, since then, in July 2017, the Veteran filed a notice of disagreement (NOD) to the denial of service connection for skin cancer. The Board further notes that the Agency of Original Jurisdiction (AOJ) sent the Veteran a letter in August 2017, advising him of the steps that were being taken to address his appeal. Accordingly, as that appeal is being appropriately developed for the issuance of a statement of the case (SOC), the Board need not take jurisdiction for that purpose. This appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Veteran's claim requires additional development. The VA examination opinions of record do not adequately take all of the relevant evidence into consideration (including complaints of sleep apnea symptoms at separation, and a statement from his wife that she observed him have apneic episodes while still in service), and are insufficient for adjudication on their own. An updated VA examination opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an appropriate physician for an opinion on whether it is as likely as not (at least 50 percent probability) that sleep apnea is related to the Veteran's service. The examiner is asked to review the file prior to opining. The Veteran's STRs show that he entered service in 1987 weighing 147 pounds, and that he weighed 195 pounds at separation in June 2007. At his separation examination, he complained of a history of trouble sleeping. He said that he had stopped breathing while sleeping, and had problems with choking, snoring, sweating, and nightmares while sleeping. He said he woke up with headaches and was tired during the day. The examining physician did not provide any further comment. The Veteran's wife is a registered nurse, and provided a statement in January 2013 that she witnessed him stop breathing while sleeping during his service. The Veteran was diagnosed with sleep apnea in May 2012, within five years of his separation. At that time, he weighed 198 pounds. The examiner is asked to provide an opinion on whether it is as likely as not (at least 50 percent probability) that the symptoms he complained of at separation were an undiagnosed manifestation of sleep apnea? The examiner is asked to provide comment on the Veteran's weight during service and at his diagnosis, as well as his complaints at separation, and the likelihood he had undiagnosed sleep apnea for an extended period of time. The examiner is also asked to provide an opinion on whether it is as likely as not (at least 50 percent probability) that service-connected allergic rhinitis, adjustment disorder with depression, or lumbar spine disabilities, or any other service-connected disability (he is also service-connected for bilateral knee disabilities, tinnitus, hearing loss, GERD, eczema, onychomycosis, and TMJ), cause any increase in severity in sleep apnea that is beyond its normal progression? The record shows that he has complained of orthopedic pain disrupting his sleep. The examiner is asked to review the relevant literature prior to opining, and to provide an explanation for all opinions. It is up to the discretion of the examiner as to whether a physical examination is also required, including diagnostic testing. If so, the examiner is asked to notify the scheduling authority. 2. Thereafter, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. 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). _________________________________________________ Nathaniel J. Doan 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).