Citation Nr: 24009727
Decision Date: 02/28/24	Archive Date: 02/28/24

DOCKET NO. 20-25 779
DATE: February 28, 2024

REMANDED

Entitlement to service connection for sleep apnea is remanded.

Entitlement to service connection for left shoulder strain (also claimed as shoulder impingement, DJD, and instability) is remanded.

REASONS FOR REMAND

The Veteran had active service from June 1978 to June 1998. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of the November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

1. Entitlement to service connection for sleep apnea is remanded.

2. Entitlement to service connection for left shoulder strain (also claimed as shoulder impingement, DJD, and instability) is remanded.

Appellants are entitled to initial review by the Agency of Original Jurisdiction (AOJ) of evidence added to the file by the Department of Veterans Affairs (VA), and waiver of such review may not be presumed. See 38 U.S.C.§ 7104(a); 38 C.F.R. § 20.1305. 

Here, additional evidence has been added to the file by VA since the May 2020 Statement of the Case (SOC) and the matter has not been readjudicated by the AOJ in a Supplemental Statement of the Case (SSOC) since that time. The evidence includes examination reports, treatment records, and personnel records.  The treatment records contain many references to the claimed shoulder and sleep apnea disaiblites.

The Veteran was notified in a January 2024 letter that the Board received VA treatment/examination records from a government facility that was not previously considered by the AOJ and requested a waiver. The Veteran was given 45 days to respond, but did not respond. Therefore, the appeal must be remanded so that an SSOC may be issued that considers all evidence of record. 38 C.F.R. § 20.1305.

The matter is REMANDED for the following action:

Readjudicate the issue on appeal taking into consideration all newly acquired evidence since the May 2020 statement of the case. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Quist 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.