Citation Nr: 1514028 Decision Date: 04/01/15 Archive Date: 04/09/15 DOCKET NO. 13-06 583A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a sleep disorder. ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from February 1999 to March 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA examination in November 2012. The Veteran was diagnosed as having idiopathic sleep related non-obstructive alveoloar hypoventilation and the examiner opined that the Veteran's condition was not related to service. The VA opinion, however, was not wholly adequate as the examiner's opinion was based on a determination that the Veteran's alleged symptoms were without medical support or treatment during service. The examiner also noted that there was no report concerning sleep until 2009. However, the examiner failed to discuss the inservice reports of medical history in which the Veteran indicated having frequent trouble sleeping, the April 2005 inservice medical examiner's note of chronic insomnia possibly due to thyroid diagnosis, and the Veteran's wife's post-service statement dated October 2007 stating that the Veteran had breathing problems while sleeping. As the examiner based the opinion on an inaccurate history as the Veteran clearly had inservice complaints of trouble associated with sleeping and evidence of such earlier than 2009 following separation, the Board finds it necessary to remand the claim for another VA examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate VA examiner who has not previously examined the Veteran to determine the etiology of his current sleep disorder. The claims file must be made available to the examiner for review. The examiner is to offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the any currently diagnosed sleep disorder is related to active service, including the in-service complaints of trouble sleeping and the April 2005 chronic insomnia possibly due to thyroid diagnosis. The examiner is to also offer an opinion as to whether it is as likely as not (a 50 percent or greater probability) that any current sleep disorder is caused or aggravated by his service-connected hyperthyroidism. The term "aggravated" in the above context refers to a worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner must provide an opinion(s) based on the Veteran's specific case and consider the arguments presented by the Veteran. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant 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 2014). _________________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).