Citation Nr: 1301567 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-09 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a sleep disability. ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran had active service from July 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania. 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 Veteran appeals the denial of service connection for a sleep disability. Service treatment records reveal a complaint of difficulty sleeping and disturbing nightmares in January 1970. The Veteran asserts that his sleep problems in service have continued post service. The Veteran is service connected for posttraumatic stress disorder (PTSD) with depression and alcohol abuse, evaluated as 70 percent disabling. He is also service connected for coronary artery disease, status post defibrillator implantation, evaluated as 100 percent disabling. Sleep difficulty and nightmares have often been referenced during his PTSD evaluations. (See, e.g., September and November 2005 VA outpatient treatment records, and a February 2010 VA examination report). It is unclear from the record, however, whether the Veteran has a sleep disability that is separate and distinct from his cardiovascular and psychiatric symptoms and, if so, whether such is related to service. In light of the above, a remand is warranted to afford the Veteran an examination. Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i), VA will obtain an examination or an opinion if it is necessary to decide the claim. The Board finds that a VA compensation examination is needed for proper adjudication of the above claim. In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, and based upon guidance from the United States Court of Appeals for Veterans Claims, remand for the purpose of obtaining a VA examination is required. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the appellant and request that he identify any records pertaining to treatment for a sleep disorder since March 2010. The Board is particularly interested in securing any medical records which would demonstrate that the appellant has a distinct sleep disorder due to service, or that he has a distinct sleep disorder that is aggravated by his service connected coronary artery disease and/or posttraumatic stress disorder. Any records obtained must be associated with the appellant's claims folder. If the RO cannot locate any identified record, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded a VA examination by a physician to determine if he has a sleep disability that is separate and distinct from his PTSD and cardiovascular symptoms and, if so, whether such a sleep disorder is related to service. If a sleep disability is found to be separate and distinct from his coronary artery disease and PTSD, upon examination and review of the entire claims folder and Virtual VA, the examiner must opine whether it is at least as likely as not (i.e., probability of 50 percent) that any diagnosed distinct sleep disability is related to service. If a distinct sleep disorder is not directly due to service the examiner must opine whether it is at least as likely as not that any diagnosed sleep disability is caused or aggravated by either or both the appellant's coronary artery disease and/or his posttraumatic stress disorder with depression and alcohol abuse. A complete rationale for all opinions expressed must be included in the examination report. 3. The Veteran is to be notified 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 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examining physician documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. Thereafter, the RO must readjudicate the Veteran's claim of entitlement to service connection for a distinct sleep disorder. The RO is advised that it is to make its determination based on the law and regulations in effect at the time of its decision, to include any further changes in VA's statutory duties to notify and assist the Veteran and any other applicable legal precedent. If the benefit sought on appeal remains denied, the appellant must be provided a supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. If the Veteran fails to show for his VA examination, the supplemental statement of the case must cite to 38 C.F.R. § 3.655 (2012). A reasonable period of time should be allowed for response. 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. 2012). _________________________________________________ DEREK R. BROWN 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) (2012).