Citation Nr: 1602518 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 10-26 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a sleep disorder. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active service from August 1988 to August 1991 with subsequent service in the Reserve. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. A hearing before the undersigned Veterans Law Judge was held at the RO in August 2011. The hearing transcript has been associated with the claims file. In March 2014 the Board denied the Veteran's claim. Thereafter, the Veteran perfected an appeal of the issue to the United States Court of Appeals for Veterans Claims (Court). In a May 2015 memorandum decision, the Court vacated the Board's decision with regard to the above issue and remanded for further consideration. In August 2015, the Veteran's representative requested that the Veteran be afforded a hearing before a Veterans Law Judge by videoconference. However, as noted above, the Veteran has already been afforded a hearing with regard to the issue listed above in August 2011. The Veteran's representative was present at the hearing in August 2011. The Veteran has a right to a hearing on appeal. 38 C.F.R. § 20.700(a) (2015). As the Veteran has already had a hearing before the undersigned the request for another hearing is denied. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the May 2015 memorandum decision, the Court found that the June 2012 VA medical examination, relied upon by the Board in denying the Veteran's claim, did not explain why the Veteran's documented insomnia was not a sleep disability or was not related to service in rendering the opinion that the Veteran did not have a service-related sleep disability because his mild sleep apnea in REM sleep was not related to service. The Court found that the report lacked clarity which, in turn, rendered confusing the Board's statement and reliance on the 2012 report. Given the inadequate examination, the Board finds that the claim must be remanded for the Veteran to be afforded another VA medical examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). On remand, attempt to obtain and associate with the claims file all VA treatment records regarding the Veteran dated since December 2012. 38 C.F.R. § 3.159 (2015). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records regarding the Veteran dated since December 2012. Ask the Veteran about the existence of any non-VA treatment records. After obtaining any necessary authorization, request any reported records. 2. Thereafter, schedule the Veteran for an appropriate examination to determine the nature and likely etiology of the reported sleep disorders. The claims folder and copies of all pertinent records should be provided to the examiner for review. Based on the examination and review of the record, the examiner should address the following: (a) Does the Veteran currently, or at any time during the appeal period since October 2007, have a chronic sleep disorder (to include sleep apnea or insomnia)? (b) for any diagnosed chronic sleep disorder, is it at least as likely as not (50 % probability) that the disorder onset in service or is causally related to service. The examiner must comment on the Veteran's reported insomnia. The examiner should provide an explanation for any opinion provided. Pertinent evidence to consider include (a) the Veteran's complaints of "poor sleep" since service; (b) October and November 2011 diagnoses of insomnia, noted to be treated with medication. 3. Then, readjudicate the appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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. E. LARKIN 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) (2015).