Citation Nr: 20003672
Decision Date: 01/15/20	Archive Date: 01/15/20

DOCKET NO. 19-25 823
DATE: January 15, 2020

REMANDED

Entitlement to service connection for sleep apnea is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from January 1964 to January 1966.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office.

Service connection for sleep apnea is remanded.

Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration.

In a January 2009 Statement in Support of Claim, the Veteran reported that he had sleep apnea and that it had been diagnosed by a Dr. Patel.  In an associated release, the Veteran provided the contact information for Dr. Patel.  It does not appear from the record that VA requested the records from Dr. Patel.  This is important because it suggests the Veteran may have been diagnosed with sleep apnea almost a decade prior to the sleep study diagnosis in the current record.  Because such records, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them.  See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records).

Updated records of VA treatment should also be procured.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession).

This matter is REMANDED for the following action:

1. Ask the Veteran to provide an updated release for relevant records of treatment from Dr. Patel, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal.  If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159.  Any new or additional (i.e., non-duplicative) evidence received should be associated with the record.  If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified.

2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159.  The evidence obtained, if any, should be associated with the record. 

3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs (to include obtaining an examination, if warranted), the issue on appeal should be readjudicated based on the entirety of the evidence.  If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

 

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Smith Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.