Citation Nr: 1308593 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 09-02 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a sleep disorder, claimed as sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from June 2002 to March 2003, and from January 2005 to July 2006. He served in the Southwest Asia theater of operations from January 2005 to June 2006. He also had an initial period of active duty for training in the Army National Guard from January 1977 to April 1977, and served in the Army National Guard through October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. Although the Veteran initially requested a Board videoconference hearing in connection with this appeal, he withdrew that request in a statement dated in December 2011. The Board notes that although the Veteran perfected an appeal of the initial noncompensable rating assigned his dental disability in a March 2007 rating decision, he withdrew his appeal of that issue in a February 2008 statement. The Veteran had also requested outpatient dental treatment, and the record reflects that the RO in April 2008 granted service connection for several teeth for such purposes, and that the RO referred the Veteran's request for treatment to an outpatient dental clinic. To the Board's knowledge, the Veteran is not seeking appellate review of any action taken by an outpatient dental clinic. The record does, however, reflect that the RO severed service connection for the dental disability for compensation purposes in a June 2008 rating action. In March 2010, the Veteran called the RO and indicated that he disagreed with the decision regarding the dental disorder. The RO sent him a letter later that month instructing him to file the attempted notice of disagreement in writing, and specified that he was to identify the rating action being challenged, as well as the specific issue with which he disagreed. In April 2010, he submitted a statement identifying the June 2008 rating decision, and the severance of service connection for dental disability, as the respective rating action and issue he wished to appeal. The record does not reflect that the RO has responded to the Veteran's April 2010 statement. Given the period of almost two years between the date of the June 2008 rating action and the Veteran's April 2010 correspondence, the Board finds that the better course at this point is to refer to the RO the issue of whether the Veteran submitted a timely disagreement with the June 2008 rating action. See 38 C.F.R. § 19.34. Compare Manlincon v. West, 12 Vet. App. 238 (1999). 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 Reason for remand: to schedule a VA examination to determine the nature and etiology of the claimed sleep disorder. The Veteran contends that he has a sleep disorder, and sleep apnea in particular, that either originated in service, or which is otherwise etiologically related to service or service-connected disability. Service connection is in effect for residuals of a traumatic brain injury, among other disorders. The Veteran's service treatment records are silent for any finding of sleep apnea or a sleep disorder. In November 2005, he reported sleep disturbances in association with a painful insect bite. On his January 2007 Post-Deployment Health Assessment, the Veteran marked that he had a deployment-related concern regarding problems sleeping or feeling tired after sleeping. At an October 2006 VA neurology examination, approximately three months after the Veteran's discharge from his final period of active duty, the examiner noted that it was possible the Veteran had sleep apnea. The Veteran thereafter underwent a polysomnography in December 2006 by a private physician; the study showed mild obstructive sleep apnea. VA treatment records on file for 2006 through 2008 document that the Veteran underwent another polysomnography in December 2007, which revealed the presence of hypopneas. In January 2008, he presented for C-PAP titration; the impression of the clinician was that the Veteran had obstructive sleep apnea. In a May 2009 statement, Dr. M. Haley concluded that the Veteran's report of fatigue, exhaustion, daily headaches, apnea, memory problems, and loud snoring in service were hallmark presenting symptoms of, and directly related to, sleep apnea, and that the Veteran's traumatic brain injury in service was quite possibly a contributing or causal factor in the apnea. The Veteran attended a VA examination in December 2009, at which time the examiner noted that patients with known obstructive sleep apnea who suffer a traumatic brain injury seem to have more symptoms following the injury. The examiner offered an impression of mild positional obstructive sleep apnea by outside testing, and concluded that the Veteran's traumatic brain injury likely unmasked the condition. He noted that there was not much evidence suggesting that the traumatic brain injury was a direct cause of the obstructive sleep apnea. As the above indicates, as of December 2009 the record appeared to indicate that the Veteran had a sleep disorder in the form of sleep apnea, with a private opinion supporting a relationship of the disorder to service, and a VA medical opinion suggesting the sleep apnea began in service and was unmasked by the traumatic brain injury. After the December 2009 examination, VA treatment records show that the Veteran underwent another polysomnograph later that month. The sleep study showed a few hypopneic events, but with the Veteran sleeping well, overall. The clinician felt that the results did not indicate a continued need for C-PAP therapy. A January 2010 follow up entry noted that the polysomnograph did not demonstrate significant sleep apnea, and that the Veteran no longer needed to continue C-PAP therapy; no further studies were planned. In light of the above, the Veteran attended his last VA examination in connection with this appeal in December 2012. The Veteran reported continued sleep problems, and his spouse apparently confirmed this account. The examiner reviewed the prior sleep studies, but concluded that the Veteran had no evidence of significant sleep-disordered breathing. The examiner nevertheless advised the Veteran to stay off his back when sleeping. Shortly after the examination, the Veteran attended a VA polysomnograph. The December 2012 treatment note describing the sleep study was written by a VA physician, who indicated that the December 2012 examiner had reviewed the results of the sleep study, but had interpreted the results as showing no sleep disorder, except for a few arousals due to restless legs. The VA physician who authored the December 2012 entry concluded that the Veteran did not have sleep apnea. At this point, the record is unclear as to whether the Veteran had sleep apnea at one point which has now resolved, or whether he never had sleep apnea. The Board points out that if it is the former, the Veteran may still be entitled to service connection for sleep apnea. See Mclain v. Nicholson, 21 Vet. App. 319 (2007). The Board notes that, even if VA determines that the Veteran ultimately never had sleep apnea, there remains the question of whether he had or has a sleep disorder other than sleep apnea. Further, even if the Veteran does not have a diagnosed sleep disorder, given his service in the Southwest Asia theater of operations and his spouse's observations concerning sleep disturbances, the matter of whether the Veteran has a chronic sleep disorder due to an undiagnosed illness is clearly raised by the record. See 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317. None of the examination reports on file adequately address those matters. The Board consequently finds that another VA examination is required in this case. Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain a copy of the June 2012 sleep study referenced in the June 21, 2012 Addendum entry in the VA treatment records. If no such sleep study report exists, this should be documented by the RO. 2. The Veteran should be afforded a VA examination by a physician with appropriate expertise to determine the nature, extent and etiology of any currently present sleep disorder. All indicated studies, to include a sleep study should be performed. If the examination results in a clinical diagnosis of any disorder associated with the veteran's claimed sleep disorder, including sleep apnea, the examiner should provide an opinion as to whether it is at least as likely as not that any such disorder originated during either of the veteran's two periods of active duty or is otherwise etiologically related to service. The examiner should also provide an opinion as to whether any such diagnosed disability was caused or chronically worsened by any of the Veteran's service-connected disorders (residuals of a traumatic brain injury, psychiatric disability, headaches, low back disability, hearing loss, tinnitus, and dental disability). If such a diagnosis of disability can not be rendered, the examiner should: A. provide an opinion as to whether the Veteran did at any point since service have sleep apnea. If the examiner concludes that the Veteran did have sleep apnea at some point after service, even if now resolved, the examiner should provide an opinion as to whether it is at least as likely as not that the sleep apnea originated in service or was otherwise etiologically related to service. The examiner should also provide an opinion as to whether it is at least as likely as not that the sleep apnea was caused or chronically worsened by any of the Veteran's service-connected disorders (residuals of a traumatic brain injury, psychiatric disability, headaches, low back disability, hearing loss, tinnitus, and dental disability). B. identify all signs and symptoms of any currently present sleep disorder, and include a discussion concerning the duration of the disorder. The examiner should also provide an opinion as to whether the sleep disorder is attributable to an undiagnosed illness. The rationale for all opinions expressed should also be provided. The veteran's claims files must be made available to the examiner for review. The examination report is to reflect whether a review of the claims files was made. 3. When the development requested has been completed, the claims files should be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case, which should include citation to 38 C.F.R. § 3.317, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).