Citation Nr: 1324611 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-05 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a sleep disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1984 to December 1989 with subsequent Army National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for sleep apnea. In February 2010, the Veteran notified VA that he had moved to Georgia and his appeal was transferred to the Atlanta, Georgia RO. The Board has broadened the Veteran's claim to encompass sleep disorders in general as stated on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (noting that claimant generally, a claimant is not competent to diagnose his specific condition; he is only competent to identify and explain the symptoms that he observes and experiences). Here, the Veteran has reported snoring and sleep impairment. Additionally, there are several sleep-related diagnoses of record, including sleep apnea, hypersomnia, incomplete continuous positive airway pressure titration, and periodic limb movement disorder. Accordingly, the claim is recharacterized as noted above. The Veteran indicated on his February 2010 VA Form 9 that he wished to testify at a Board hearing. However, the Veteran withdrew his request in July 2010. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that the only pertinent record is a July 2013 informal hearing presentation. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to clarify National Guard service, attempt to obtain additional service treatment records (STRs), and to obtain an examination. First, remand is required to obtain a VA examination. VA must provide an examination where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes an event, injury or disease in service, or a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4)(2012); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the evidence need only "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, there are sleep disorder-related diagnoses of record: sleep apnea, hypersomnia, incomplete continuous positive airway pressure titration, and periodic limb movement disorder. Additionally, the Veteran, a fellow soldier who slept near the Veteran, and the Veteran's wife, all provided testimony that the Veteran snored and gasped for air while sleeping. The Veteran has stated that these symptoms have continued since service discharge. Furthermore, a February 2010 private medical opinion noted that the Veteran had likely had sleep apnea for many years based on reports of witnessed apnea, snoring, and excessive daytime hypersomnolence while in the military. Unfortunately, that opinion was based on a factual inaccuracy because the physician stated that in 2005 the Veteran was diagnosed with sleep apnea while still in service. There is, however, no record of an in-service diagnosis, and the Veteran was not serving in 2005. Regardless, the Board finds that this opinion, coupled with the other facts of record, triggers VA's duty to provide an examination. Second, remand is required to provide clarification regarding the Veteran's National Guard service. A National Guard service report indicates that the Veteran served approximately 10 months in the National Guard, from December 1989 to October 1990. The June 2009 rating decision, however, provided that the Veteran served for about one month, from September 1990 to October 1990. On remand the RO/AMC should attempt to verify the dates of service, and all of the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). Third, remand is required to attempt to obtain additional STRs. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making as many requests as are necessary to obtain relevant military records and VA records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). The claims file contains limited STRs dated from June 1979 to July 1979. The RO attempted to obtain a complete copy of the Veteran's STRs, to include treatment records from active duty from January 1984 to December 1989 and from the period of National Guard service from September 1990 to October 1990. However, an October 2010 formal finding indicated that a May 2008 records request to the National Personnel Records Management Center showed that those STRs were unavailable for review. The October 2010 finding did not, however, confirm the unavailability of service treatment records from December 1989 to October 1990. Additionally, a September 2009 VA treatment record referenced a July 2007 sleep study, which is not of record. Thus, additional STRs and VA medical records must be obtained. Finally, remand is required to attempt to obtain private medical records. VA's duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant private medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1). A February 2010 private treatment record noted that an overnight oximetry would be performed and that a follow-up appointment should be made within a month. Unfortunately, a review of the claims file is negative for the overnight oximetry, and any follow-up visits to the private physician. These records need to be obtained. Accordingly, the case is REMANDED for the following action: 1. Attempt to verify the beginning and end dates of the Veteran's National Guard service, including specific dates for each period of ACDUTRA and INACDUTRA. If such verification of ACDUTRA or INACDUTRA is unobtainable, a negative reply should be noted in writing and associated with the claims file. If obtainable, the periods of ACDUTRA and INACDUTRA must be provided to the examiner. 2. Request medical treatment and service personnel records for the Veteran's service with the Army National Guard (1148th Transportation Company in Augusta, Georgia) from the U.S. Army Reserve Personnel Center, 9700 Page Boulevard, St. Louis, MO 63132 or other appropriate source. Any records obtained should be associated with the claims file. 3. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his sleep disorder. After securing any necessary authorization from him, obtain all identified records not already contained in the claims file including, but not limited to, records of the July 2007 sleep study, and records of any further examinations or treatment by Dr. J.D. All reasonable attempts should be made to obtain any identified records and to obtain any outstanding VA treatment. If any records cannot be obtained after reasonable efforts have been made, a formal determination that such records do not exist or that further efforts to obtain such records would be futile should be issued and documented in the claims file. The Veteran should be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After obtaining any outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of his sleep disorder. The claims file should be made available to the examiner for review and the examiner should state in the examination report that the claims file has been reviewed. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner should identify all sleep disorders found to be present, if any, including but not limited to sleep apnea, hypersomnia, incomplete continuous positive airway pressure titration, and periodic limb movement disorder. With respect to each such disorder diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not related (50 percent or greater likelihood) to the Veteran's active duty service. Regarding the Veteran's Army National Guard service, the examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran's sleep disorder was due to a disease or injury incurred in or aggravated in ACDUTRA, or whether it is at least as likely as not that the Veteran's sleep disorder was due to an injury incurred in or aggravated in INACDUTRA. To determine the specific dates of the Veteran's ACDUTRA and/or INACDUTRA. In offering any opinion, the examiner must consider the full record, to include service treatment records and the Veteran's lay statements. Specifically, the examiner must consider the March 2006 VA treatment record diagnosing sleep disturbances, the July 2007 sleep study diagnosing sleep apnea, the April 2009 buddy and spouse statements asserting in-service symptoms of sleep apnea, and the February 2010 private treatment record. 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 claim must be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representatives must be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ K. MILLIKAN Acting 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).