Citation Nr: 1237994 Decision Date: 11/06/12 Archive Date: 11/16/12 DOCKET NO. 06-22 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include hypersensitivity pneumonitis. 2. Entitlement to service connection for a sleep disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from December 1967 to December 1971, with subsequent active duty for training and inactive duty for training in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The case was remanded by the Board in August 2010 to attempt to obtain and associate with the claims file any outstanding service treatment records, private treatment records, and proper VCAA notice. The RO attempted to obtain service treatment records and provided a formal finding of unavailability in July 2011 documenting their attempts. The Veteran was afforded proper VCAA notice and additional private treatment records were obtained. A review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 private treatment records show that the Veteran attempted to apply for Workman's Compensation. The claims file does not contain any records relating to that claim. The RO should attempt to obtain and associate any such records with the claims file. The record contains conflicting nexus opinions. In April 2005 and August 2005, examiners found that the Veteran's pneumonitis was due to bird exposure. In September 2010, the Veteran's private examiner determined the etiology to be related to jet fuel and chemical exposure. In January 2005 and January 2006, two examiners found that the Veteran's disability was caused by both birds and fuel exposure. The examiners did not address whether the fuel exposure was during the Veteran's period of active duty. Based on the conflicting findings, the Board finds that a VA examination is necessary to address the evidence and provide a nexus opinion. The Veteran's representative has asserted that his claimed sleep disorder may be causally related to his pneumonitis. Therefore, the Board finds that the sleep disorder claim is inextricably intertwined with the issue of service connection for a respiratory disorder and cannot be finally adjudicated until the development regarding a respiratory disorder is complete. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to obtain and associate with the file any records related to the Veteran's workers' compensation claim. All efforts to obtain these records should be documented in the claims file. 2. The Veteran should be afforded a VA examination. The relevant documents in the claims file, to include service treatment records, should be made available to and reviewed by the examiner in connection with the examination. Any tests deemed medically advisable should be accomplished. The examiner should clearly address the following: Is it at least as likely as not (a 50% probability or more) that the Veteran's disability was manifested in or caused by the Veteran's service, to include his exposure to jet fuel and chemicals while working as an aircraft mechanic. The examiner should specifically address the conflicting statements regarding etiology and the Veteran's longtime significant exposure to birds. The examiner should address only the Veteran's period of active service. A complete rationale for any opinion offered should be provided. 3. After the development and examination have been completed with respect to the respiratory disability, the issues of entitlement to service connection for a respiratory disability should be readjudicated. If, and only if, service connection is granted for a respiratory disability, then schedule the Veteran for an examination to determine the nature and etiology of his sleep disorder. The claims file must be made available to the examiner and all necessary testing should be conducted. If a sleep disorder is diagnosed, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the sleep disorder cause caused by or was aggravated by his service-connected respiratory disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. A complete rationale must be provided for any opinion offered. 4. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). 5. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and determine if service connection for a respiratory disorder or sleep apnea is warranted. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).