Citation Nr: 1321602 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 07-23 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for breathing difficulties, to include as due to undiagnosed illness. 2. Entitlement to service connection for sleep apnea, to include as due to undiagnosed illness. REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from October 2002 to March 2003, September 2004 to November 2005, June 2006 to December 2006, and September 2007 to September 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of the Veteran's claims file is currently at the Indianapolis RO. The Veteran's case was remanded by the Board in March 2011 for further evidentiary development. Service connection for a right hip disability was subsequently granted in an August 2012 rating decision. This decision was a complete grant of benefits with respect to this issue. As such, the only issues remaining on appeal are as listed on the title page of this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Upon preliminary review of the evidence of record, the Board finds that further evidentiary development is necessary regarding the Veteran's service connection claims for sleep apnea and breathing problems. In its March 2011 remand, the Board specifically requested that the RO obtain all available records regarding the Veteran's February 2006 sleep study as referenced in his February 2006 VA examination. The AMC attempted to comply with the remand directive by obtaining a February 2006 VAMC record. In a March 2011 letter, the AMC sent the Veteran a letter indicating that it had obtained a copy of his February 2006 sleep study. However, a review of the claims file (including in Virtual VA) does not show that the February 2006 sleep study record was ever obtained. The only pertinent record in the claims file is a February 2006 request for a fee-basis sleep study, but not a copy of the study itself as indicated in the March 2011 letter. Additionally, the Board requested that the examiner specifically perform and include a copy of a current sleep study, unless he/she specifically provides a complete rationale as to why such a study is not necessary. When reviewing the examination report, it does not appear that the Veteran was afforded a sleep study in conjunction with his April 2011 VA examination. The examiner cited to an April 2006 sleep study that was within normal limits. The Board notes that it appears as though the examiner may have used the wrong year in listing the normal sleep study. Nevertheless, there is no record showing that a sleep study was performed in conjunction with the requested VA examination, nor was a detailed rationale provided for not performing the sleep study. The Board is obligated by law to ensure that the Agency of Original Jurisdiction (AOJ) complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As such, the Veteran's claim must again be remanded so the AOJ can attempt to retrieve a copy the actual February 2006 sleep study. Additionally, the Veteran should be provided a new VA examination to determine the current etiology of his claimed breathing problems and sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Obtain all available records for the Veteran's February 2006 sleep study, as referenced in the February 2006 VA examination report and subsequent treatment records. The RO/AMC should keep in mind that this may be a fee-basis VA examination performed at another facility. Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records. 2. After the above evidence is obtained, to the extent available, schedule the Veteran for appropriate VA examination(s) for his breathing problems and reported sleep apnea. The claims file, and any pertinent evidence in Virtual VA, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, and conducting a physical examination and all necessary diagnostic testing, specifically to include a sleep study unless the examiner provides a complete rationale as to why such study is not necessary, the examiner should render an opinion as to whether it is at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran has sleep apnea or other associated respiratory disability that has been caused or aggravated by the Veteran's military service. A copy of any sleep study performed should be associated with the claims file. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. If the examiner is unable to diagnose sleep apnea or any underlying respiratory or pulmonary disability to account for the Veteran's complaints, this should be noted and fully explained in the report. 3. The RO/AMC should complete any additional developmental steps warranted by the evidence and then readjudicate the Veteran's claims. If one or more of the claims remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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). _________________________________________________ MICHAEL LANE 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).