Citation Nr: 1134817 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 04-43 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for obstructive sleep apnea. ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to March 1999. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the benefit sought on appeal. The issue on appeal was remanded by the Board for additional development in January 2007, August 2008, and April 2009. The claim was subsequently returned to the Board, and denied in a November 2010 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2011 Order, the Court granted the parties' Joint Motion for Remand and to Stay Proceedings (Joint Motion), vacated the November 2010 Board decision denying entitlement to service connection for obstructive sleep apnea, and remanded the matter to the Board for development consistent with the parties' Joint Motion. The Board notes that the Veteran has submitted statements alleging that clear and unmistakable errors have been made in adjudicating his claims. However, the Veteran has not indicated with specificity the final rating action or actions that he alleges were the product of clear and unmistakable error or the nature of the error other than inadequate consideration of the evidence. See Fugo v. Brown, 6 Vet. App. 40 (1993). In addition, the Board notes that to the extent that the Veteran may have alleged clear and unmistakable error in regard to his current claim on appeal, the claim is not final and, therefore, an allegation of clear and unmistakable error is not for consideration. See 38 C.F.R. § 3.105(a); see also Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997). As such, this matter is referred to the RO for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board remanded this matter in April 2009 in order to obtain an opinion on whether the Veteran's alleged exposure to contaminants as a result of his involvement in the overhaul of the U.S.S. Jouett caused or contributed to his development of obstructive sleep apnea. While previous VA medical opinions had been obtained, this particular point had not sufficiently been resolved. In the remand directives, the Board indicated, "a complete rationale for the opinion expressed, with citation to relevant medical findings, must be provided." Accordingly, a VA examination was conducted in October 2009. In the examination report, the examiner opined that the Veteran's obstructive sleep apnea is due to a congenitally small oropharynx, worsened by increasing obesity. The examiner further opined, "literature review finds no support for sleep apnea being caused by contaminant exposure." The parties agreed in the Joint Motion that the Board's November 2010 decision denying entitlement to service connection for obstructive sleep apnea must be vacated because the Board relied upon an inadequate medical examination report in rendering its decision. Specifically, the parties to the Joint Motion agreed that the October 2009 VA examination report was inadequate because the examiner's rationale is "conclusive," and because the examiner did not provide the citation to the relevant medical authority as was previously requested by the Board in an April 2009 remand. Stegall v. West, 11 Vet. App. 269 (1998). In the Joint Motion the parties agreed that upon remand the Veteran must be provided with an adequate VA medical examination that provides sufficient detail and complies with the Board's October 2009 order. As such, the Board has no discretion and the claim must be remanded for a new opinion containing adequate rationale and specific citation to the relevant medical authority to be obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the examiner who conducted the October 2009 opinion for the purpose of obtaining a supplemental opinion addressing whether it is at least as likely as not that the Veteran's alleged exposure to contaminants while overhauling the U.S.S. Jouett caused or contributed to his development of obstructive sleep apnea. If the opinion remains negative, the examiner is directed to thoroughly explain why this is the case. Please note that the Court ultimately found the October 2009 report inadequate because the statement, "literature review finds no support for sleep apnea being caused by contaminant exposure," was determined to be conclusive, and thus, insufficient. Additionally, if medical literature is referred to, specific citation to that literature is required. If the examiner who conducted the October 2009 examination is not available, the claims file should be forwarded to an alternative, appropriate examiner. No further examination of the Veteran is necessary unless the examiner determines otherwise. 2. Thereafter, review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. Specific attention is directed to the requested examination report. Ensure that the medical report is complete and in full compliance with the above directives. If the report is deficient in any manner or fails to provide the specific opinion requested, it must be returned to the examiner for correction. 38 C.F.R. § 4.2 (2010); see also Stegall, 11 Vet. App. at 268. 3. Then readjudicate the Veteran's claim, to include consideration of any additional evidence obtained as a result of this Remand. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. 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). _________________________________________________ ROBERT J. BURRIESCI Acting 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).