Citation Nr: 1320480	
Decision Date: 06/25/13    Archive Date: 07/05/13

DOCKET NO.  09-12 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for a sleep disorder other than sleep apnea, to include insomnia.


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 


INTRODUCTION

The Veteran served on active duty from September 1987 to September 1990, and from April 1995 to June 2003.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision of the RO that, in pertinent part, declined to reopen a claim for service connection for sleep apnea syndrome on the basis that new and material evidence had not been received.  The Veteran timely appealed.

In December 2011, the Board found new and material evidence to reopen the Veteran's claim, and remanded the reopened claim for additional development.  

A decision of the Board in October 2012 denied service connection for sleep apnea.  In addition, the Board noted that the U.S. Court of Appeals for Veterans Claims has held that the Board must broadly construe claims, and consider other diagnoses for service connection when the medical record so reflects.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Accordingly, because the Veteran claimed service connection for sleep apnea syndrome and had been diagnosed with insomnia, the issue on appeal as reflected on the title page is the expanded issue as a result of the Clemons decision; and that matter was remanded by the Board in October 2012 for further development.

The Board is satisfied there was substantial compliance with its remand orders.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of her Virtual VA file.


FINDING OF FACT

The full benefit sought on appeal has been granted.


CONCLUSION OF LAW

There is no longer an issue of fact or law before the Board pertaining to the claim of entitlement to service connection for a sleep disorder other than sleep apnea, to include insomnia.  38 U.S.C.A. §§ 7104, 7105 (d)(5) (West 2002); 38 C.F.R. § 20.101 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Here, VA's Appeals Management Center (AMC) issued a supplemental statement of the case in April 2013, in which service connection for a sleep disorder other than sleep apnea, to include insomnia, was denied.  Later that same month, the maximum benefit sought on appeal had been granted by the AMC.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  In essence, a "case or controversy" involving a pending adverse determination that the Veteran has taken exception to does not currently exist.  See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) [quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)].  Accordingly, the Board does not have jurisdiction to review the appeal for service connection for a sleep disorder other than sleep apnea, to include insomnia; and the issue is dismissed.


ORDER

The appeal for service connection for a sleep disorder other than sleep apnea, to include insomnia, is dismissed.



____________________________________________
MICHAEL A. PAPPAS
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs