Citation Nr: 1340425 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 07-13 363A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a disorder manifested by somnolence, fatigue, and/or excessive sleeping. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a veteran who served on active duty from September 1970 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In February 2011, the Board denied the Veteran's appeal regarding service connection for a chronic disability manifested by difficulty sleeping. The Veteran appealed the Board's decision regarding service connection for a chronic disability manifested by difficulty sleeping to the United States Court of Appeals for Veterans Claims (Court), and in October 2012, the Court in a single-judge Memorandum decision reversed in part and set aside the February 2011 Board decision and remanded the matters for further adjudication. The Secretary filed a timely reconsideration of the Court's October 2012 decision. In April 2013, the Court withdrew the October 2012 single-judge decision, but then set aside the February 2011 Board decision and remanded the case to comply with the Court's dictates. As pointed out by the Court, the VA must consider the Veteran's potential entitlement to benefits, not only just for a condition manifested by sleeping difficulties, but also for any other disorder reasonably encompassed by the Veteran's claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board will consider service connection for the variously diagnosed sleep-related disorders, of record. 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 any further delay in adjudicating the Veteran's claim, pursuant to the duty to assist, the issue of service connection for the variously diagnosed sleep-related disorders must be remanded for further development. In its April 2013 Memorandum Decision, the Court inferred from the Veteran's arguments that he was essentially alleging that he had manifestations of a sleep disorder in service, and found that the Board did not adequately address his theory of in-service sleep problems or evidence in that regard; and, in essence the Board failed to adequately consider the lay statements of record describing his in-service and continuing post-service sleep problems. The Court therefore remanded the claim for the Board to consider these allegations and instructed the Board not to limit its evaluation of the evidence solely to a claim for service connection for a chronic disability manifested by difficulty sleeping, but to consider any potential sleep disorder. Cf. Clemons, 23 Vet. App. 1. The Veteran has since submitted an October 2013 private physician's opinion which, based on lay statements including the Veteran's, as well as unspecified electronic files, diagnosed sleep apnea and concluded that this disorder was related to medical service. As referred to above, sleep studies have been conducted. While there have been variously diagnosed disorders (some pulmonary related) none have been conclusive of sleep apnea. The diagnoses have included hypoxemia, respiratory insufficiency, hypersomnia (July 2005), and intrinsic sleep disorder NOS (October 2005 and August 2006). Further information is needed, specifically regarding the variously diagnosed pulmonary and sleep-related disorders and their etiology. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that a veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should arrange for a VA examination of the Veteran to address the etiology of any currently diagnosed sleep disorder to include sleep apnea, hypoxemia, respiratory insufficiency, hypersomnia (July 2005), and intrinsic sleep disorder NOS. The claims file, to include a copy of this remand, must be made available to the examiner for review in conjunction with the examination. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file. The examiner is to also note that s/he reviewed the private and VA medical records, regarding the Veteran's sleep problems. The examiner is asked to answer the following: (a). Does the Veteran have a current sleep disorder, to include sleep apnea? Please specify the diagnoses, if any. (b). If a sleep-related disorder is diagnosed the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep disorder(s): (1) was incurred during his period of active service. (Please note, the Veteran is competent to attest to a continuity of any lay-observable symptoms since his active service). (c). In explaining the rationale for his/her opinion, the examiner is also asked to comment on the lay statements that are part of the record and the October 2013 private physician's statement diagnosing sleep apnea and relating it to service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 2. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2. 3. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Appellant 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. Parakkal 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).