Citation Nr: 1323835 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-21 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a psychiatric disorder 2. Entitlement to service connection for a sleep disorder (sleep walking). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2005 to May 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. A remand is required to obtain VA treatment records and a medical opinion. In a March 2009 statement, the Veteran's private physician indicated that he was not treated for depression or sleep walking before June 2005. In an April 2009 statement, the same physician indicated that the Veteran was treated for depression and anxiety after May 2006. In May 2010, the Veteran was afforded a VA examination. The examiner took detailed history. Following examination, the examiner diagnosed alcohol abuse, poly-substance abuse, primary sleep disorder sleep walking and depression, NOS. The examiner noted that the Veteran's depression was due to post-service alcohol and poly-substance abuse. At the time of the examination, the examiner recommended a sleep lab be ordered. In a May 2010 addendum, the examiner reviewed the Veteran's claims file and noted his service treatment records showed a report of insomnia and diagnoses for adjustment disorder with depressed mood and sleepwalking. In a February 2011 addendum, the VA examiner indicated that sleepwalking was diagnosed by history based on the indication that the Veteran was discharged from the Air Force on account of this sleep walking disorder. He noted there was no current evidence whether or not the Veteran has this disorder. In addition, he indicated that it was questionable whether sleep studies would provide a definitive diagnosis of whether sleep walking currently exists. He concluded that it is less likely that not that sleepwalking, if it exists, is a result of his Air Force service. The Board observes that once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). At the time of the May 2010 VA examination, the examiner suggested further study, which apparently was not conducted. Furthermore, in the February 2011 addendum, the VA examiner stated that it was questionable whether sleep studies would provide a definitive diagnosis of whether the claimed sleep disorder exists. Consequently, this issue contains certain questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern whether the Veteran has a sleep walking disorder, and if so, whether such a disability is related to his military service or non-service-connected depression. Therefore, the Board finds that a VA examination and medical opinion are necessary to determine the nature and etiology of any sleep walking disorder that may be present. Finally, the record reflects that there are outstanding VA treatment records which may be pertinent to the claim on appeal. Specifically, the Veteran indicated during the May 2010 VA examination that he received VAMC treatment in March 2009 and May 2009. The May 2009 records are not associated with the claims file currently before the Board. Any relevant written opinion or other notations provided in this treatment record, if available, could be supportive of the Veteran's appeal. As such, any outstanding VA treatment records pertinent to the Veteran's claims should be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should undertake appropriate development to obtain copies of any outstanding treatment records (either electronically in Virtual VA or in paper format) pertinent to the Veteran's claims, to include VAMC Leavenworth treatment records dated in May 2009. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any sleep walking disorder. The examiner should determine if the appellant has a sleep disorder, to include sleep walking and if present the cause of the disorder. If the examiner is unable to identify whether a current sleep walking disorder exists or determines that a sleep study is not beneficial, he or she should provide a fully reasoned explanation based on established medical principles. Rationales should be associated with all conclusions reached in the examination report. 3. After completing all indicated development, the RO/AMC then should readjudicate the remaining issues on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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 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). _________________________________________________ H. N. SCHWARTZ 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).