Citation Nr: 1234928 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 06-39 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a sleep disability to include sleep apnea and insomnia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to February 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. This matter was previously before the Board in December 2009 and May 2011 and was remanded for further development. It has now returned to the Board for further appellate consideration. 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 Unfortunately, the Board finds that another remand is necessary prior to adjudicating the claim on appeal. In this regard, the Veteran was provided with a VA respiratory examination in June 2011. The examiner determined that the Veteran's current sleep apnea is less likely as not caused by or a result of military diagnosis of sleep apnea. She thought that the most likely cause was increasing weight gain. The examiner explained that since the 2001 sleep study was normal in comparison to 1998, the sleep apnea recurred after leaving the military and was due to increased weight gain. The examiner did not address the February 2007 opinion from the Veteran's private physician who specializes in pulmonology and sleep that the Veteran's sleep apnea was first diagnosed during military service. He noted that the Veteran's sleep apnea should be service connected as it began and developed during his time in the military. The June 2011 VA examiner also noted that other risk factors for sleep apnea include hypertension. The Veteran contends that his sleep apnea is also directly associated with his service-connected hypertension and pulmonary emphysema. See April 2012 Veteran statement. Based on the foregoing, the Board finds that the Veteran should be provided with a VA opinion from an appropriate specialist to address the February 2007 private opinion with respect to whether the Veteran's current sleep apnea is related to active military service and/or if the Veteran's sleep apnea was caused by or aggravated by his service-connected hypertension and/or reactive airway disease. With respect to the Veteran's claim of a sleep disability due to insomnia, the Board notes that the VA examiner in June 2011 determined that the Veteran's insomnia is not caused by sleep apnea since he is treated for sleep apnea with CPAP and he continued to have symptoms. She determined that since his symptoms may have improved with the use of Paxil that he should be evaluated by mental health to determine if that is the cause for insomnia. The VA mental health examination in July 2011 reveals that the Veteran was diagnosed with dyssomnia. The July 2011 examiner explained that he is unable to determine whether it is primary or due to a general medical condition such as a breathing-related sleep disorder. However, the July 2011 examiner determined that it is at least as likely as not that the Veteran's current dyssomnia is related to the sleep disorder of sleep apnea diagnosed during the Veteran's military service. It appears that the examiner provided conflicting opinions in the July 2011 VA examination and she did not provide any supporting rationale for either opinion. Thus, the Board finds that the Veteran should be provided with another VA opinion with respect to his claim for insomnia and/or dyssomnia. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA examination and opinion by an appropriate specialist or specialists for his service connection claim for a sleep disability to include sleep apnea, insomnia and dyssomnia. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should conduct a thorough evaluation and determine the presence of any current sleep disorders, to include sleep apnea and insomnia. The examiner also should provide an opinion as to the following: a. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that sleep apnea, insomnia, dyssomnia and/or any other sleep disorder found on examination had its clinical onset during active service or is related to any in-service disease, event, or injury. b. If the answer to question (a) is negative with respect to the Veteran's sleep apnea, then whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the current diagnosis of sleep apnea was caused by his service-connected hypertension and/or reactive airway disease. c. If the answer to question (b) is negative, then whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated (meaning chronically worsened) by his hypertension and/or reactive airway disease. The examiner must provide an explanation of all opinions, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record, including diagnostic studies, and assertions made by the Veteran concerning symptoms, to include the onset and frequency of such symptoms. The examiner is asked to specifically address the results of the 1998 sleep study conducted during military service that led to the diagnosis of sleep apnea, the implication of the results in the August 2001 sleep study and the February 2007 letter from the Veteran's private physician. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 2. Upon completion of the foregoing, readjudicate the Veteran's service connection claim for a sleep disability, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. 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. 2011). _________________________________________________ U. R. POWELL 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).