Citation Nr: 1807404 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-18 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from July 1983 to April 1987. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The issues of entitlement to a rating in excess of 30 percent for dissecting cellulitis scalp with hydranitis suppurative and entitlement to service connection for anti double stranded DNA have also been adjudicated by the RO. The RO addressed these issues in a February 2014 statement of the case (SOC). However, in his May 2014 substantive appeal, the Veteran indicated that he was only continuing his appeal with respect to the issue of service connection for sleep apnea. As such, these other issues are no longer in appellate status. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for sleep apnea. The Veteran reported that his symptoms started in service when he started to notice a physical change with his sleep and always felt tired. He indicated that he was misdiagnosed with other respiratory disorders while in service. Service treatment records do document numerous instances of respiratory infections. Moreover, a December 1981 record showed an assessment of insomnia. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. In light of the Veteran's statements and the instances documented in the service treatment records, the Board finds that the Veteran should be afforded a VA examination to determine the etiology of any currently diagnosed sleep apnea. Moreover, in a July 2017 Report of General Information, it was noted that the Veteran reported receiving treatment at the Loma Linda VA Medical Center (VAMC) since January 2008. Significantly, in the April 2011 rating decision, the RO indicated that a sleep study was done at the VAMC in January 2008. However, it does not appear that VA clinical records prior to February 2009 have been associated with record. Moreover, although the RO indicated in the SOC that an electronic review of VA treatment records from March 1999 to January 2014 had been done, the most recent VA treatment records actually associated with the Veteran's record are dated from March 2011. As VA medical records are constructively of record and must be obtained, the AOJ should obtain all VA treatment records from the Loma Linda VAMC not already associated with the record, specifically to include all records prior to February 2009 and dated from March 2011 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, the Report of General Information also observed that the Veteran was going to be submitting additional private medical evidence to support his claim, The Board finds that efforts should be made to obtain any additional relevant private clinical records, after receipt of any necessary authorization and consent from the Veteran, and then associated with the record. Lastly, in his substantive appeal, the Veteran indicated that he did not want a Board hearing. However, the July 2017 Report of General Information indicated that the Veteran wanted a hearing; however, there was no indication whether the Veteran desired a personal RO hearing or a Board hearing. Importantly, a November 2017 brief from the Veteran's representative again gave no indication that the Veteran wanted a Board hearing. As such, further clarification is needed as to whether the Veteran desires a hearing, and if so, whether he wants a RO hearing or a Board hearing. Accordingly, the case is REMANDED for the following action: 1. Clarify whether the Veteran wants a personal RO hearing or a Board hearing. 2. Obtain all VA treatment records from the Loma Linda VAMC not already associated with the record, specifically to include all records prior to February 2009 and dated from March 2011 to the present.. 3. Take appropriate steps, to include obtaining any necessary authorization from the Veteran (i.e., a completed and signed VA Form 21-4142), to obtain any additional relevant private treatment records. 4. Schedule the Veteran for VA examinations to determine the nature and etiology of any currently diagnosed sleep apnea. The claims file should be made available for review. After reviewing the record and examining the Veteran, the examiner should offer an opinion as whether it is at least as likely as not (a 50% or higher degree of probability) that sleep apnea is related to the Veteran's active service. The opinion should be supported by a clear rationale. 5. Readjudicate the claim. The appellant 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 (2014). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), 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).