Citation Nr: 1121122 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 06-25 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for ulnar neuropathy of the right upper extremity (major extremity). 2. Entitlement to an initial rating in excess of 20 percent for ulnar neuropathy of the left upper extremity (minor extremity). 3. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from October 1982 to January 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for ulnar neuropathy of the right upper extremity and ulnar neuropathy of the left upper extremity and assigned a 10 percent evaluation, effective February 1, 2005. In October 2009, the Board remanded both issues for additional evidentiary development. By a November 2010 rating decision, the Appeals Management Center assigned a 30 percent evaluation for ulnar neuropathy of the right upper extremity and a 20 percent evaluation for ulnar neuropathy of the left upper extremity. Each disorder was assigned an effective date of March 12, 2005. The claims remain in controversy because the ratings are less than the maximum available benefit awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board also notes that during the course of the appeal, the Veteran perfected an appeal of a denial of a claim for entitlement to service connection for obstructive sleep apnea which arose from an April 2008 rating decision. Accordingly, this issue is currently on appeal as reflected on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board's review of the claims file reveals that further action on the claims is warranted. It its October 2009 remand, the Board determined that a VA examination with medical opinion was necessary to ascertain the nature and severity of the Veteran's bilateral ulnar nerve neuropathy. The Veteran reported at the March 2010 VA examination that over the past few months, he received treatment for his bilateral ulnar neuropathies from Dr. Ditrano, a private orthopedic physician, who recommended ulnar nerve releases for both elbows. The Veteran also indicated that wrist and elbow x-rays were taken. A review of the claims folder reveals that treatment reports from Dr. Ditrano are not of record and should be obtained. With regard to the claim for sleep apnea, the Veteran contends that this disorder was incurred in service. A private sleep studies report dated in October 2007 shows a diagnosis of sleep apnea syndrome. In a November 2007 letter, A. Turkay, M.D. reported that the Veteran carried long-standing diagnoses of fibromyalgia (for which he is service-connected) and chronic fatigue syndrome and that it was possible that the obstructive sleep apnea may cause symptoms of fatigue and arthralgias reminiscent of fibromyalgia syndrome as well as chronic fatigue syndrome. In a May 2008 letter, G.B. Goodman, M.D., reported that that he could not prove that the Veteran's sleep apnea is service-connected, but he could not exclude the possibility either and that it was certainly possible. In a March 2010 letter, P.W. Strum M.D., reported that a review of the records suggests that while the Veteran was recently diagnosed with sleep apnea, his symptoms extend back to his active military service. Dr. Strum felt that the Veteran had irregular sleep/wake cycles and abndormal work hours that could have contributed to his sleep disorder. He also indicated that the Veteran suffered a head injury in service which he stated is not uncommonly associated with sleep disorders. Given the private physicians opinions addressing the relationship between the Veteran's sleep apnea and service, the Board opines that a VA examination is warranted so that an examiner can review the entire medical record, consider a complete history, and provide an informed opinion as to the relationship between any current sleep apnea and service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should contact Dr. Ditrano and request that copies of all treatment records, to include any x-ray reports pertaining to the Veteran's bilateral ulnar neurpathies be submitted. Any records received must be added to the claims folder. 2. The RO should contact Doctors Turkay, Goodman, and Strum and request that they provide copies of all outpatient treatment records they have in their possession concerning their care of obstructive sleep apnea. Any records received must be added to the claims folder. 3. Schedule the Veteran to undergo a VA examination, by an appropriate physician to determine the etiology of the claimed obstructive sleep apnea. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran has obstructive sleep apnea which had its onset during service or is related to service. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ WAYNE M. BRAEUER 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) (2010).