Citation Nr: 21064405
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 17-37 783
DATE: October 20, 2021

REMANDED

Entitlement to service connection for sleep apnea is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1990 to February 1994.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from    a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claim was previously before the Board in March 2019 at which time it was remanded for further development.

The Board notes that the Veteran's sleep apnea claim was initially denied in a January 2015 rating decision. Subsequently, in June 2015, the Veteran was diagnosed with mild obstructive sleep apnea. This evidence is new, as it was       not before agency decision makers at the time of the January 2015 decision. It is also material, as it establishes one element necessary for service connection. As this evidence was received during the appeal period of the January 2015 rating decision, that decision did not become final, and the claim will be addressed on   the merits. 38 C.F.R. § 3.156(b).

Entitlement to service connection for sleep apnea is remanded.

Upon review of the record, the Board notes that the Veteran's correct representative for this appeal is the service organization listed on the cover page, as the attorney representative specifically limited their representation to a different claim. The Veteran's service organization representative was, therefore, not revoked by the appointment of the attorney representative. The service organization was not provided with the July 2020 supplemental statement of the case (SSOC), and was not notified when the Veteran's appeal on the sleep apnea claim was docketed at the Board. Accordingly, remand is necessary to correct this due process error.

The matter is REMANDED for the following action:

Provide a copy of the July 2020 SSOC to the Veteran's representative and provide an appropriate period for response.  

 

 

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Jesteadt, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.