Citation Nr: 1646347	
Decision Date: 12/09/16    Archive Date: 12/21/16

DOCKET NO.  09-02 550	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for a sleep disorder, to include as secondary to service-connected disease or injury.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E.I. Velez, Counsel


INTRODUCTION

The Veteran served on active duty from January 1968 to December 1969.
This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 

The Board previously remanded the claim in August 2012, March 2015 and January 2016.  The appeal has been returned to the Board for further appellate review.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand.  It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance.  The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status.  Id.

In the January 2016 remand, the Board requested the RO obtain a new medical opinion.  The Board specified that "[t]he claims file should be made available to a VA physician with appropriate expertise, other than the April 2015 VA examiner, to provide medical opinions..."  The Board deemed it important that it be a different VA examiner from the one who provided the April 2015 opinion and emphasized the request by italicizing that provision.  

A new medical opinion was obtained in February 2016 as per the Board's remand; however, this opinion was obtained from the same VA examiner, Dr. K , who provided the April 2015 medical opinion.  This goes against the Board's remand request.  Therefore, the Board finds the RO failed to comply with the Board's remand request and a new medical opinion is needed.  

Accordingly, the case is REMANDED for the following action:

The claim file should be made available to a VA physician with appropriate expertise, other than Dr. K M, the April 2015and February 2016 VA examiner, to provide medical opinions addressing the nature and etiology of the Veteran's sleep apnea.  All diagnostic testing deemed necessary should be scheduled.  Upon review of the Veteran's claims file, and after performing any necessary testing, the physician should provide responses to each of the following questions:

a.) Is it at least as likely as not (50 percent or greater 
 probability) that the Veteran's sleep apnea disability had its onset in, or is otherwise related to his period of active service from 1968 to 1969?

b.) Notwithstanding the above, it is at least as likely as 
 not that the Veteran's sleep apnea disability was caused or aggravated beyond its natural progression by his service-connected PTSD, including by the medication taken for PTSD?  In providing this opinion, the physician should specifically comment on the results of the December 2012 medical study submitted by the Veteran in February 2015.

If aggravation is found, the examiner should also identify the baseline level of severity of the nonservice-connected disability to the extent possible.

The Board reiterates that a clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.


If upon completion of the above action the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures.  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 2014).



_________________________________________________
H. N. SCHWARTZ
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).