Citation Nr: 0732614 Decision Date: 10/17/07 Archive Date: 10/26/07 DOCKET NO. 06-25 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for sleep apnea on a direct basis. 2. Entitlement to service connection for sleep apnea secondary to service-connected allergic rhinitis/sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Air Force from August 1973 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania which denied service connection for sleep apnea. The RO in Wilmington, Delaware currently has original jurisdiction over the case. The veteran testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge at the Wilmington RO in August 2007. A transcript of the hearing has been associated with the veteran's VA claims folder. The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The veteran is seeking service connection for sleep apnea on a direct basis as well as secondary to his service-connected allergic rhinitis/sinusitis. After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further development. 1. Entitlement to service connection for sleep apnea on a direct basis. In order to establish service connection for sleep apnea on a direct basis there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, the evidence of record indicates that the veteran was diagnosed with sleep apnea in September 1998. Hickson element (1) has therefore been met. With respect to Hickson element (2), the veteran's service medical records do not indicate that he was ever treated for sleep apnea during his military career. However, the veteran's spouse has submitted a lay statement indicating that the veteran has exhibited "symptoms later diagnosed as sleep apnea" for the past 33 years. Although the veteran's spouse is not competent to proffer opinions which require medical expertise, for the purpose of this remand, Hickson element (2) has arguably been met. With respect to Hickson element (3), medical nexus, the record does not contain a nexus opinion. Under the circumstances here presented, the Board believes that a medical opinion must be obtained. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2006) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. 2. Entitlement to service connection for sleep apnea secondary to service-connected allergic rhinitis/sinusitis. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, there appears to be evidence that satisfies element (1) (current diagnosis) and element (2) (service- connected disability). The matter of medical nexus, element (3), raises questions that must be addressed by an appropriately qualified physician. See Charles, supra. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. VBA should arrange for a physician to review the veteran's VA claims folder and provide an opinion, with supporting rationale, as to whether it is as likely as not that the veteran's currently diagnosed sleep apnea (1) began during or is related to his military service; or (2) is caused by or aggravated by his service- connected allergic rhinitis/sinusitis. If the reviewing physician finds that physical examination of the veteran and/or diagnostic testing is necessary, such should be accomplished. A report should be prepared and associated with the veteran's VA claims folder. 2. VBA should then readjudicate the veteran's claims of entitlement to service connection for sleep apnea on a direct and secondary basis. If the benefit sought on appeal remains denied VBA should provide the veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).