Citation Nr: 1806644	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-33 493	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for sleep apnea, to include as secondary to service connected diabetes and/or hypertension.


REPRESENTATION

Veteran represented by:	James G. Fausone, Esq.


ATTORNEY FOR THE BOARD

J. I. Tissera, Associate Counsel


INTRODUCTION

The Veteran had active duty service from June 1964 to January 1971. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 and July 2010 rating decisions of the Department of Veterans Affairs (VA) regional office (RO) located in Nashville, Tennessee. 

In the Board remanded the claim for additional development in September 2014 and August 2017.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Unfortunately, an additional remand is required in this case for the issue on appeal. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim.

In August 2017, the Board remanded the issue of service connection for sleep apnea, to include as secondary to service connected diabetes and/or hypertension, to obtain a new VA examination.  The examiner was instructed to offer an opinion as to whether the sleep apnea is either caused or aggravated by service connected diabetes or hypertension, and to give a clear rationale for all opinions.  The Board finds that the examiner of the August 2017 VA examination did not provide a rationale as to why he opined it was less likely than not that the Veteran's sleep apnea was caused or aggravated by his service connected diabetes or hypertension.  Therefore, the Board finds that there has not been substantial compliance with its remand instructions, and another remand is required.  Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

1.  Obtain all of the Veteran's outstanding treatment records since September 2017 that are not currently of record.  All records/responses must be associated with the electronic claims file.

2.  After completing the above, to the extent possible, provide the claims file, including a copy of this REMAND, to an appropriately qualified examiner.  If the examiner believes that an actual physical examination is required to provide a medical opinion, one should be scheduled.

The examiner should offer an opinion as to whether the sleep apnea is either (a) caused or (b) aggravated by service connected diabetes or hypertension.

A complete rationale for any opinion expressed must be provided.

3.  Then, readjudicate the Veteran's claim.  If his claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC).  After the Veteran and his attorney have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review.

The Veteran 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 LANE
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).