Citation Nr: 1314115 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 08-10 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected disability. 2. Entitlement to aid and attendance allowance for the Veteran's spouse. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active service in the United States Army from March 1996 to February 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2006 and March 2007 rating decisions issued by the above Department of Veterans Affairs (VA) Regional Office (RO). The claim was remanded in April 2012 for additional development. 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 Additional development is necessary prior to further disposition of the claims. On previous remand, VA treatment records dated from 1997 to 2012 were associated with the Veteran's Virtual VA record and were considered in the November 2012 supplemental statement of the case. However, those records do not pertain to this particular Veteran and are thus misfiled. Therefore, a remand is necessary to obtain the correct VA treatment records, as was requested on previous remand, dated since 1999. Also on remand, an opinion regarding the etiology of the Veteran's sleep disorder should be obtained. In June 2012, a VA sleep specialist stated that the Veteran's service-connected disabilities, including his degenerative disease of the cervical and lumbar spine, his right leg sciatica, GERD, migraine headaches, and depression, as well as the medications used to treat those conditions, could potentially disrupt his sleep, but that such did not rise to the level of aggravation that could be called a permanent worsening. However, the examiner did not provide any rationale as to why his ongoing physical disabilities caused no permanent aggravation to his sleep disorder. Thus, a clearer explanation is necessary. Moreover, the examiner did not address the service treatment records which document reports of sleep trouble. In April 1998, the Veteran stated that he had trouble sleeping because of his back pain. On an April 1998 physical examination, he reported trouble sleeping related to depression and worry of a "pending Chapter." In June 1998, the Veteran stated that he was having difficulty sleeping due to back pain. Therefore, an opinion should be obtained as to whether the Veteran's current sleep disorder was caused or aggravated by his service. The Veteran's claim for aid and attendance for his spouse was remanded to afford the spouse an examination; however, she did not report to the June 2012 examination and the Veteran told the examiner that they were no longer living together. The examiner noted that the Veteran's spouse had best corrected vision of 5/200 or worse in both eyes, but did not provide an opinion as to whether she needed regular aid and attendance. While it appears that the Veteran and his spouse are no longer living together, the claim has been pending since February 2006; thus, it is possible the benefit would be payable for a period of time during which the Veteran and his spouse lived together. On remand, the AMC/RO should obtain information as to the parties marital status and obtain a medical opinion as to the spouse's need for aid and attendance. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records dated since 1999 that have not already been obtained and associated with the claims file. If records are unavailable, inform the Veteran and give him the opportunity to obtain those records. 2. Ask the Veteran to provide updated information on his marital status. 3. Schedule a VA examination with an examiner of the appropriate specialty to determine the nature and etiology of the Veteran's sleep disorder. The examiner should review the claims file and note that review. A thorough explanation should be provided for all opinions reached. a) Diagnose the current sleep disorder, to include sleep apnea or narcolepsy. Note if the Veteran suffers from other sleep symptoms, such as somnolence, and determine whether those symptoms are related to an underlying sleep disorder or to his psychiatric disorder. b) Determine whether it is at least as likely as not (within 50 percent probability or greater) that the Veteran's current sleep disorder was caused or aggravated by, or had its onset in, service. The examiner should take into the 1998 reports of trouble sleeping related to back pain and depression. c) Determine whether it is at least as likely as not (within 50 percent probability or greater) that the Veteran's current sleep disorder was caused or aggravated (beyond the normal progression of the disease) by his service-connected depression, cervical spine disability, lumbar spine disability, sciatic neuropathy of the right lower extremity, migraine headaches, and GERD. If no permanent aggravation is found, the examiner should explain why those disabilities do not cause permanent aggravation to the underlying sleep disorder. 4. Obtain a medical opinion as to whether the Veteran's spouse was in need of regular aid and attendance for any period since February 2006. Pertinent medical evidence includes Social Security Administration records. The examiner should comment on the June 2012 opinion. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 6. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant 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. 2012). _________________________________________________ M. E. LARKIN 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).