Citation Nr: 1225232 Decision Date: 07/20/12 Archive Date: 07/30/12 DOCKET NO. 09-18 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a sleep disorder, other than sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active military duty from April 2005, to September 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for sleep apnea has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran has repeatedly complained of not feeling rested after sleep and having others tell him that he snores. Further, service treatment records (STRs) reveal that the Veteran was given a presumptive diagnosis of sleep apnea. The Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to 1) obtain clarification of Veteran's intention with regard to a Board hearing, 2) obtain an addendum opinion to the Veteran's January 2012 VA psychiatric examination, and 3) obtain a VA examination to address the issue of a sleep disorder. While on remand, an attempt to obtain relevant VA treatment records should also be made. A remand is required to obtain an addendum opinion to the Veteran's January 2012 VA psychiatric examination and an appropriate VA examination regarding a sleep disorder. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, an examination is required when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4) (2011). Here, the March 2008 VA examination originally conducted to evaluate the Veteran's sleep impairment is no longer adequate because it does not fully address whether there is a currently diagnosed sleep disorder and does not address all the claimed theories of service connection. Additionally, post-examination medical evidence now requires clarification of any sleep disorder etiology. The Veteran alleges entitlement to service connection for a sleep disorder as due to medications prescribed during service and as secondary to his service-connected asthma. Additionally, the medical evidence of record now suggests that any sleep impairment may be solely related to his service-connected psychiatric disorder. Thus, remand is required for an addendum opinion to the 2012 psychiatric examination and an appropriate VA examination to address and clarify these issues. Here, the Veteran was provided with a VA examination in March 2008. The examiner noted that the Veteran had complaints and treatment for insomnia in military service. It was noted that this was reported by the treating physician as being merely a "phase of life problem." While in the military, the Veteran attributed lack of sleep to his duty hours and steroid medication. At the time of the examination, the Veteran reported taking approximately thirty to forty minutes to fall asleep. He also presented as getting approximately five hours of sleep per night, sometimes awaking intermittently about two to three times per night and falling back asleep within ten minutes. On some occasions, the Veteran would awaken and not feel rested, affecting his energy level for the day. The examiner noted that these were not clinically significant symptoms of a mental disorder, to include chronic insomnia. The Veteran was administered a VA examination in January 2012, after he filed a new claim for service connection for major depressive disorder. At that examination, the examiner noted that the Veteran had been treated in military service for complaints of depression and anxiety, to include insomnia. The examiner attributed the insomnia to the Veteran's depression and difficulty falling and staying asleep to his anxiety. In a January 2012 rating decision, the Veteran's chronic sleep impairment was a symptom that was included in his seventy percent evaluation for major depressive disorder with anxiety due to a general medical condition. A review of the Veteran's VA outpatient treatment records from the Houston VA Medical Center shows that he continually sought treatment for insomnia post service. In June 2009, he was given a prescription sleep aid. He began receiving treatment for depression and anxiety, to include complaints of insomnia, in December 2010, and this has continued until January 2012. A review of the Veterans service treatment records (STRs) shows that he sought treatment for insomnia and was prescribed medication in service. During a psychological evaluation in May 2007, it was noted that the Veteran reported snoring and that he always feels tired. The treating physician rendered a presumptive diagnosis of sleep apnea. No indication was given of whether the Veteran's insomnia was a result of his steroid medication. In a Congressional Correspondence, dated October 2010, the Veteran submitted medical literature, via a website called WebMD, in which it discussed the possible link between asthma and insomnia. We made this determination above. Because the Veteran's sleep disorder could be a separate disorder and/or due to other causes in addition to his psychiatric disorder, as discussed above, a clarifying opinion is necessary. The examiner who conducted the January 2012 examination must clarify his opinion to include a discussion of the possible exclusivity of the relationship between any sleep symptom or disorder and the psychiatric disorders. Accordingly, remand is necessary to obtain an addendum opinion for the January 2012 examination and an appropriate examination to obtain the nature and etiology of any sleep symptoms. Last, while on remand, the AMC should attempt to obtain any outstanding relevant VA treatment records. VA's duty to assist includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2) (2011). Here, VA medical records dated from March 2008 to January 2012 are associated with the claims file. Attempts should be made to obtain current VA records. Accordingly, the case is REMANDED for the following action: 1. Contact the Houston VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment, and examination reports (including a full copy of the January 2012 psychiatric examination report). If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his or her representative. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. After any additional records are obtained and associated with the paper or virtual claims file, contact the examiner who conducted the January 2012 VA psychiatric examination and obtain an addendum opinion in order to determine the etiology of any sleep disorder. The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must provide the following opinions: 1) is it as least as likely as not that the Veteran's sleep impairment symptoms are part of his major depressive disorder with anxiety due to a general medical condition and not a separate disorder; 2) is it as least as likely as not that the Veteran's sleep impairment symptoms constitute a separate sleep disorder that is caused or aggravated by the major depressive disorder with anxiety due to a general medical condition; and 3) if it is a separate disability not related to his psychiatric disability, provide an opinion regarding whether the symptoms can be separated from the service-connected psychiatric disability. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. If the VA examiner who conducted the January 2012 VA examination is not available to provide an addendum, the Veteran should be scheduled for another VA examination and the examiner should be provided with the Veteran's claims folder. The examiner should then provide the requested medical opinions and include a full discussion of supporting medical bases and reasoning as described above. 3. After the VA psychiatric examination addendum has been completed and associated with the claims file, provide the Veteran with an appropriate examination to determine the current diagnosis and etiology of a sleep disorder. The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the examiner for review. 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. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must first determine if there is a currently diagnosed sleep disorder, separate and apart from the Veteran's service-connected psychiatric disorder. If there is such a diagnosis, the examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep disorder 1) was caused or aggravated by the Veteran's military service, including medications taken during service, or 2) was caused or aggravated by service-connected asthma. The examiner must address the lay statements of record regarding the Veteran's symptoms, including those from his family, friends, and co-workers. The examiner must also address the medical articles submitted by the Veteran. 4. Review each examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. 2011). _________________________________________________ J. A. MARKEY 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) (2011).