Citation Nr: 1807514 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 15-04 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to July 1991. These matters are before the Board of Veterans' Appeal (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board observes that the rating decision also denied additional issues, however in his substantive appeal, the Veteran only wished to appeal the sleep apnea and headache disabilities. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if any action, on his part, is required. REMAND Upon review of the Veteran's claims file, the Board finds multiple grounds for remand. First, remand is necessary to ensure that due process is followed. In pertinent part, under 38 C.F.R. § 19.37, if a Statement of the Case (SOC) is prepared prior to receipt of additional evidence, a Supplemental Statement of the Case (SSOC) must be furnished, as provided in 38 C.F.R. § 19.31 (2017), unless the additional evidence is duplicative or not relevant to the issue on appeal. Historically, a November 2011 memorandum documents in detail that the Veteran's service treatment records (STRs) are unavailable for review. The December 2011 rating decision; as well as the December 2014 SOC references the November 2011 memorandum. In August 2016, the RO obtained and associated the Veteran's STRs with the claims file subsequent to the issuance of the December 2014 SOC. There is no SSOC of record that addresses the STRs as they pertain to the issues on appeal. Accordingly, this evidence must be referred back to the RO for consideration and issuance of an SSOC in these matters. The Board notes that, although recent statutory provisions allow for an automatic waiver of initial RO review of post-substantive appeal evidence, that type of evidence must be submitted by the Veteran. See 38 U.S.C. § 7105 (e) (2012). Here, the post-substantive appeal evidence was obtained by the RO. Thus the automatic waiver does not apply. Second, remand is warranted for VA examinations. Indeed, the STRs show no complaints of or treatment for either sleep apnea or migraine headaches while the Veteran was on active duty. He has, however provided statements from his former squad leader that indicates the Veteran suffered migraine headaches while serving on active duty. Moreover, the Veteran also reported that he experienced symptoms of sleep apnea while on active duty, that included awakening gasping for air after he stopped breathing. He is capable of observing and subsequently reporting that he experiences waking up gasping for air. Post-service treatment records document sleep apnea and migraine headaches. The Veteran has not been provided VA examinations with regard to his abilities, and the Board finds that such evidence is more than sufficient to meet the threshold requirements for affording the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006) (VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4). Accordingly, VA examinations are warranted to determine the nature and etiology of the Veteran's sleep apnea as well as migraine headaches. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and ask that he identify any additional provider(s) of all VA and/or private treatment he has received for his sleep apnea and migraine headaches, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure records of such treatment or evaluation. Obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. All attempts to obtain these records must be documented in the file. 2. Following the above records development, obtain appropriate VA examination(s) and opinion(s) from an appropriate examiner(s) to determine the nature and etiology of his sleep apnea and migraine headache disabilities. The claims file must be reviewed by the examiner(s) in conjunction with the examination(s). Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner(s) should provide opinions responding to the following: Whether it is at least as likely as not (50 percent or better probability) that any current sleep apnea had its onset in service. Whether it is at least as likely as not (50 percent or better probability) that the current headache disability (claimed as migraines) had its onset in service. The examiner should acknowledge the Veteran's report of his symptoms/history in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the requested development has been completed, the RO shall review all additional evidence that has been associated with the claims file to include the STRs, and readjudicate the claims on appeal. If the decision is adverse to the Veteran, he and his representative shall be furnished a SSOC and provided with the opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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 (2017). _________________________________________________ MICHAEL E. KILCOYNE 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).