Citation Nr: 21029297
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 13-03 211A
DATE: May 13, 2021

REMANDED

Entitlement to service connection for a disability other than chronic fatigue syndrome manifested as a sleep disorder, to include sleep apnea, narcolepsy, and undiagnosed illness, is remanded.

REASONS FOR REMAND

The Veteran served on active duty for training from October 1983 to February 1984 and on active duty from January 1985 to August 1991, with service in Southwest Asia from December 1990 to June 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA).  

The Veteran testified before the undersigned Veterans Law Judge at a September 2017 Board video hearing.  A copy of the hearing transcript has been associated with the electronic claims file.

1. Entitlement to service connection for a disability other than chronic fatigue syndrome manifested as a sleep disorder, to include sleep apnea, narcolepsy, and undiagnosed illness, is remanded.

This matter was last adjudicated by the RO in a January 2021 Supplemental Statement of the Case.  Since that time additional relevant VA-generated evidence has been received.  In a March 2021 letter, the Board sought waiver of initial RO consideration of this evidence.  The Veteran was notified that he had 45 days to respond to the letter, and if no response was received, the Board would assume that he did not wish to have the Board decide his appeal at this time, and the claim would be remanded for the agency of original jurisdiction (AOJ) to consider the newly received evidence in the first instance.  The Veteran has not responded in the time allotted.  

The Board may not finally adjudicate the claim without the RO initially considering the newly obtained evidence, as to do so could potentially strip the Veteran of his statutorily provided "one review on appeal to the Secretary" in violation of his due process rights.  See 38 U.S.C. § 7104(a)(2018); see also Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) ("Together sections 511(a) and 7104(a) dictate that the Board acts on behalf of the Secretary in making the ultimate decision on claims and provides 'one review on appeal to the Secretary' of a question 'subject to decision by the Secretary' under section 511(a).").

Consequently, the matter must be remanded for the RO to readjudicate the claim with consideration of the entire electronic claims file, to include the evidence received since the January 2021 Supplemental Statement of the Case.  38 C.F.R. §§ 19.31, 19.37(b). 

Lastly, the Board has reviewed the entire electronic claims file for the limited purpose of determining whether there has been substantial compliance with past Board remand directives, and finds that the RO has substantially complied with the Board's previous remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

The matter is REMANDED for the following action:

Readjudicate the Veteran's claim seeking entitlement to service connection for a disability other than chronic fatigue syndrome manifested as a sleep disorder, to include sleep apnea, narcolepsy, and undiagnosed illness.  If any benefit sought remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative.

 

 

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Galante

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.