Citation Nr: 1324695 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 06-30 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a sleep disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. During the pendency of the appeal, jurisdiction was transferred to the Detroit, Michigan, RO. The matter was previously before the Board in January 2010, May 2012, and February 2013. In each instance, the Board remanded the issue on appeal for additional development and adjudication. Unfortunately, as the requested development was not completed, the appeal is once again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As noted in the Introduction, the claim was most recently before the Board in February 2013. At that time, the Board determined that additional evidentiary development was necessary. As the remand orders of the Board were not complied with, further remand is mandated. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the matter to obtain any additional private treatment records (sleep study) of the Veteran from Borgess Medical Center in Kalamazoo, Michigan. In February 2013, the RO sent a letter to the Veteran in attempt to obtain the identified sleep study from the Borgess Medical Center. The RO noted that the Veteran failed to respond to their request for records; however, given that the Veteran was in Florida from December 2012 to April 2013, it is not clear whether he received the communication from the RO. The Board feels that an additional attempt must be made to obtain medical records identified by the Veteran to fully assist him with his claim. 38 C.F.R. § 3.159(c)(1). Also in February 2013, the Board instructed the RO to obtain either an addendum opinion or another VA examination if the August 2010 VA examination report did not address whether the Veteran had a sleep disorder separate and apart from his service-connected posttraumatic stress disorder (PTSD). The RO scheduled the Veteran for a new VA examination in March 2013. The Veteran did not appear; however, given that the Veteran was in Florida from December 2012 to April 2013, it is not clear whether he received notice of the scheduled examination from the RO. In the most recent Informal Hearing Presentation, the Veteran's representative notes the missed appointment and asks that in light of the recent evidence showing a diagnosis of obstructive sleep apnea, that a new VA examination be scheduled. The Board notes that the Veteran has variously argued that his sleep apnea is secondary to his service-connected PTSD and/or psoriatic arthritis. The November 2011 VA examiner (and May 2012 addendum opinion) did not find a current sleep disorder, to include sleep apnea. Given the current diagnosis of obstructive sleep apnea rendered after sleep study in 2012, the Board finds that a new opinion must be sought, which answers the questions posed in May 2012, February 2013, and below. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). The May 2012 and February 2013 Board Remands are incorporated by reference. The examiner is directed to answer the specific questions set forth in the numbered paragraphs below. The most recent VA outpatient treatment records associated with the Virtual VA record are dated in January 2013. Updated records of any subsequent treatment the Veteran has received for the claimed sleep disorder are pertinent evidence that must be secured. 38 C.F.R. § 3.159(c)(2). Finally, there also appears to be an outstanding hearing request by the Veteran. In September 2006, the Veteran perfected his appeal by submitting VA Form 9, Appeal to Board. He indicated at that time that he did not want a hearing before the Board. In December 2012, the Veteran submitted an additional VA Form 9 and requested a BVA hearing by live videoconference. Therefore, the appeal must be remanded so the RO can clarify whether the Veteran wants a hearing before the Board and if so, schedule such hearing. 38 C.F.R. § 20.704. Accordingly, the case is REMANDED to the RO for the following action: 1. Ask the Veteran to provide releases for VA to obtain records of any private sleep study performed by the Borgess Medical Center in Kalamazoo, Michigan, and then request the identified private records directly from the provider. All requests for records and their responses must be associated with the claims folder. 2. Secure for the record copies of the complete updated (since January 2013) VA clinical records of all evaluations and treatment the Veteran received for his sleep disorder. All requests for records and their responses must be associated with the claims folder. 3. After completion of the foregoing, schedule the Veteran for a VA examination to ascertain the nature and etiology of his sleep disorder. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be available for review by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records in Virtual VA or VBMS that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated tests or studies must be completed. The examiner should describe all findings in detail. A complete rationale must be provided for all opinions expressed. If the requested opinions cannot be made without resorting to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resorting to speculation. Based on the examination and review of the record, the examiner should answer the following questions: (a) Is it at least as likely as not (50% probability or greater) that any sleep disorder, to include obstructive sleep apnea, is related to the Veteran's military service. In answering this question, the examiner must address whether the Veteran's obstructive sleep apnea is a separate disorder apart from his service-connected PTSD or whether it is a symptom of his PTSD. (b) Is it at least as likely as not (50% probability or greater) that any sleep disorder was caused or aggravated by the service-connected PTSD or psoriatic arthritis. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of sleep apnea (i.e., a baseline) before the onset of the aggravation. 4. In the interest of avoiding further remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for service connection for a sleep disorder, to include any pertinent evidence contained within Virtual VA or VBMS. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. 6. Once all the development above has been completed, the RO should clarify whether the Veteran desires a hearing before the Board and if so, take appropriate steps to schedule the Veteran for a hearing before a Veterans Law Judge at the next available opportunity. Any indicated development should be undertaken in connection with this hearing request. 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). _________________________________________________ MILO H. HAWLEY 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).