Citation Nr: 18150585 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-32 953 DATE: November 15, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an increased disability rating for posttraumatic stress disorder, rated as 30-percent disabling prior to October 26, 2015 and 50-percent disabling thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1999 to September 2003 in the United States Marine Corps. This matter comes before the Board of Veterans’ Appeal (Board) on appeal from a February 8, 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in relevant part, denied entitlement to service connection for sleep apnea. Service connection for sleep apnea was denied for failure to establish it was incurred or caused by his service. 1. Entitlement to service connection for sleep apnea is remanded. After the issuance of the Statement of the Case (SOC) on June 9, 2016, additional medical records pertaining to the issue at hand, sleep apnea, were added to the claims file. However, a Supplemental Statement of the Case (SSOC) was not issued after the additional evidence was obtained. Moreover, there is no basis for a waiver of RO consideration of the additional evidence under 38 C.F.R. § 20.1304 because the new evidence was not submitted by the Veteran. Accordingly, pursuant to 38 C.F.R. § 19.31, the issues of entitlement to service connection for sleep apnea must be remanded for the issuance of an SSOC. See 38 C.F.R. § 19.31. 2. Entitlement to an increased disability rating for posttraumatic stress disorder, rated as 30-percent disabling prior to October 26, 2015 and 50-percent disabling thereafter. In an August 2014 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) rated at 30-percent disabling. Thereafter, the Veteran submitted correspondence in November 2014 stating his PTSD rated at 30 percent “has increased in severity”. He went on to identify other issues he suffers from since the original claim was filed and stated he wished for an upgraded rating for his service-connected PTSD. It appears the RO did not accept this correspondence as a Notice of Disagreement (NOD). To date, no SOC was issued addressing the August 2014 NOD. The Board finds the Veteran filed an NOD on November 25, 2014, which went unadjudicated by the RO. An NOD is any written communication made by the Veteran which he expressed his disagreement with the determination of his claim. 38 C.F.R. 20.201(2014). Furthermore, the Veteran desired to contest the results of the August 27, 2014 rating decision. The Board finds the correspondence submitted by the Veteran from November 2014 was a disagreement with the determination and he wishes for an appellate review of the determination. Moreover, the Veteran specifically identifies the current rating must be reassessed based on his worsening condition since the date of claim. See Statement in Support of Claim on November 24, 2014. Under 38 C.F.R. § 20.201, the Veteran’s November 2014 filing meets the requirements of an NOD, which requires the RO to submit an SOC. A matter must be remanded for issuance of an SOC as the Veteran timely filed his NOD. See Manlincon v. West, 12 Vet. App. 238 (1999). Here, the Board finds the RO incorrectly determined the Veteran’s correspondence did not qualify as an NOD. Therefore, the Board finds the November 2014 correspondence qualifies as an NOD pursuant to 38 C.F.R. § 20.201 and the RO must submit an SOC. In light of the above, the Board must take jurisdiction over this issue for the limited purpose of remanding it for the issuance of an SOC for the November 2014 NOD. See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Readjudicate the issue of entitlement to service connection for sleep apnea after considering all the evidence, including additional medical records submitted after issuance of the SOC. After readjudication, if the claim remains denied, a SSOC must be provided to the Veteran. After the Veteran has adequate opportunity to respond, the appeal must be returned to the Board for appellate review. (Continued on the next page)   2. Furnish the Veteran an SOC regarding the issue of entitlement to an increased disability rating for PTSD in excess of 30 percent prior to October 26, 2015 and in excess of 50 percent thereafter. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Glaeser, Associate Counsel