Citation Nr: 18124013
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-27 291A
DATE:	August 3, 2018
REMANDED
Entitlement to service connection for obstructive sleep apnea is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the United States Army from September 1982 to November 2007.
This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.  By that rating action, the RO, in part, denied service connection for sleep apnea.  The Veteran appealed this rating action and the RO’s determination therein to the Board. 
The Board finds that prior to further appellate consideration of the claim, additional procedural and substantive development is required. 
First, a remand is required to have the RO issue a Supplemental Statement of the Case (SSOC).  Here, after the RO issued a July 2015 Statement of the Case (SOC), wherein it addressed the issue on appeal, it received, in part, pertinent VA treatment reports, prior to the transfer of the claims file to the Board in April 2016.  Regarding evidence received prior to such a transfer, 38 C.F.R. § 19.37 (2017) states that an SSOC will be furnished unless the additional evidence received duplicates evidence previously of record which was discussed in the SOC or a prior SSOC, or the additional evidence is not relevant to the issue, or issues, on appeal.  In this case, pertinent private medical information was also newly obtained and was not addressed in the SSOC.  As the VA records are not subject to automatic waiver, and the Veteran has not expressly waived initial consideration of this evidence by the AOJ, an SSOC that reflects consideration of this evidence is required.  See 38 C.F.R. §§ 19.31, 19.37, 20.1304(c) (2017).  
A remand is also required to have the RO schedule the Veteran for a VA examination to determine the etiology of his sleep apnea. 
The Veteran seeks service connection for sleep apnea.  He contends that his sleep apnea initially manifested as headaches during his period of active military service and that it has continued since that time.  (See VA Form 646, dated in March and August 2015, authored by the Veteran’s agent).  
The Veteran’s service treatment records (STRs) reflect that he received treatment for headaches that were associated with maxillary sinusitis and nausea in October 1986 and February 2006, respectively.  In October 2006, and after the Veteran complained of nausea, dizziness and headaches, he underwent a computed tomography scan (CT) of the head, the results of which were noted to have been unremarkable.  A November 2007 retirement examination report reflects that the Veteran’s head, face and neck were evaluated as “normal.”  On an accompanying Report of Medical History, the Veteran denied having had frequent trouble sleeping.  He indicated that he had had frequent and severe headaches.   
The post-service evidence of record reflects that the Veteran has been diagnosed as having obstructive sleep apnea.  (See July 2015 Sleep Apnea Disability Benefits Questionnaire (DBQ), authored by A. S., M. D.)).  The Board notes that the July 2015 DBQ authored by S. K. M. D. does not contain any conclusions or opinions as to the etiology of the Veteran’s sleep apnea, notably whether it had its initial manifestations as headaches during service, as alleged by the Veteran.  
Thus, as the Veteran has maintained that his sleep apnea initially manifested as headaches during military service, the in-service complaints of headaches and a post-service diagnosis of OSA, the Board finds that the low threshold of McLendon has been met.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  Thus, he must be provided an examination to determine the etiology of his sleep apnea.  Id.
The matter is REMANDED for the following action:
1. Provide the Veteran with an appropriate examination determine the etiology of his obstructive sleep apnea.  The entire claims file must be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  
The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea- had its onset in, or is otherwise related to, his period of active military service.  
The examiner must consider the Veteran’s assertions that his sleep apnea initially manifested during service as headaches and the in-service complaints of headaches associated with maxillary sinusitis and nausea in October 1986 and February 2006, respectively.  The examiner must consider the Veteran’s November 2007 service retirement examination report reflecting that his head, face and neck were evaluated as normal, and accompanying Report of Medical History, disclosing that he denied having had frequent trouble sleeping, but that he had had severe and frequent headaches. 
2. Thereafter, readjudicate the claim on appeal, and issue a supplemental statement of the case which includes consideration of the evidence received since the statement of case.
 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Carole Kammel

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