Citation Nr: 1332887 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-21 364 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a sleep disorder, to include as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active duty service from June 1982 to October 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO, among other things, denied the Veteran's claim for service connection for sleep apnea. In July 2008, the Veteran filed a notice of disagreement (NOD) with this rating decision. A statement of the case (SOC) was issued in May 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2009. The Board notes that the issue in this case has previously been phrased as a claim for service connection for sleep apnea. However, the Board observes that the Veteran's November 2007 claim included both sleep apnea and insomnia and the Veteran has reiterated general complaints of "sleeping problems" as opposed to specific symptoms associated with sleep apnea. Accordingly, the Board has recharacterized the issue on appeal more broadly as a claim for service connection for a sleep disorder. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him). 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 they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. For reasons expressed below, the matter on appeal is being remanded to RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in May 2013 correspondence, the Veteran raised the issue of entitlement to service connection for fibromyalgia, chronic fatigue syndrome, erectile dysfunction, diabetes, and hypertension. These claims have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ)-here, the RO. Therefore, the Board does not have jurisdiction over these matters, and they are referred to the RO for appropriate action. REMAND Initially, in connection with the November 2007 claim that is the subject of this appeal, the Veteran inidicated that he was seeking sought service connection for a sleep disorder on a direct basis. Specifically, in January 2008 correspondencem the Veteran reported that his sleeping problems began in 2004 (during military service) at which time he was given sample packages of Ambien by a physician's assistant. However, after the RO awarded service connection for PTSD in a March 2011 rating decision, the Veteran submitted correspondence in April 2012 claiming that his sleep disorder was secondary to PTSD. In June 2012, a VA examiner opined that the Veteran's sleep apnea (which was first diagnosed in August 2007) was not caused by or a result of his service-connected PTSD (which was first diagnosed in August 2008). The rationale for this opinion was that "sleep apnea is not caused by PTSD." Initially, the Board notes that while the June 2012 VA examiner opined that the Veteran's sleep apnea is not related to his PTSD, he did not address whether the Veteran had any other sleep disorder (other than sleep apnea) that could be related to his PTSD. Significantly, the examiner noted that the Veteran was on medications for his depression that can cause drowsiness. This raises a question as to whether the Veteran's sleep problems are related to medications he uses for his PTSD. In addition, the examiner did not address whether the Veteran's claimed sleep disorder was directly related to his military service. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Under these circumstances, the Board finds that the VA opinion is inadequate, and that further medical opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO/AMC should arrange for the Veteran to undergo VA examination, by an appropriate medical professional, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO/AMC should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, and the RO/AMC should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. As regards VA records, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Fayetteville, North Carolina dated through April 2013. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the RO/AMC should obtain from the Fayetteville VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran since April 2013, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The letter should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO/AMC of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO/AMC should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Fayetteville VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since April 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, along with copies of any pertinent Virtual VA records must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly indicate whether the Veteran currently suffers, or at any time since November 2007 suffered, from a sleep disorder-to include, but not limited to, sleep apnea. If so, then for each such diagnosed disorder, the examiner should opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disorder (a) had its onset in or is otherwise etiologically related to service; or (b) was caused or is aggravated (i.e., worsened beyond normal progression) by the Veteran's service-connected PTSD, to include any medication(s) used to treat the disorder. In rendering each requested opinion, the examiner should consider and discuss all relevant evidence, to include medical documents, and all lay assertions, particularly the Veteran's reported history of problems falling asleep starting in 2004 followed by the use of Ambien during military service. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted,. adjudicate the expanded claim on appeal in light of all pertinent evidence (to include all evidence added to the record since the last adjudication) and legal authority. 9. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2013). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).