Citation Nr: 1753481 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 11-16 332 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a disorder manifested by fatigue. REPRESENTATION Appellant represented by: Samuel K. Richardson, Agent ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from May 1983 to April 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision of the Atlanta, Georgia, Regional Office (RO). In April 2013, July 2014, and October 2014, the Board remanded the appeal for scheduling of a Board hearing. In November 2014, the Veteran withdrew his hearing request. Therefore, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(e) (2017). In May 2015, the Board remanded the appeal for additional action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Remand is required to ensure compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Remand is necessary to obtain any records produced as a result of this search. Lastly, remand is necessary to afford the Veteran VA examinations for his disorders. The case is REMANDED for the following action: 1. THE RO IS ADVISED: the May 2015 Board Remand directed the RO to "[a]ttempt to obtain any outstanding VA treatment records dating prior to July 5, 2009. . . ." A July 2006 VA treatment record states that the Veteran had previously been treated at the Jesse Brown VA Medical Center (VAMC) in Chicago, Illinois. No records from this facility have been associated with the file and no attempts have been made to obtain these records. The Board Remand also directed that records from the VA Outpatient Clinic in Crown Point, Indiana, be associated with the file. A July 2016 Report of Information states that that facility "could not locate any records and said the Veteran was not seen at their facility." This assertion contradicts a December 1994 letter from a physician at that facility that he was treating the Veteran. Therefore, another search of the records is required, including a search of archived or retired records. In October 2017, the VA Office of General Counsel referred a request for records to the Jesse Brown VAMC Privacy Office and asked that they conduct a search of the Veteran's treatment records, including any records that had been archived or retired, in order to obtain a copy of a report from a December 1994 sleep study. The RO must therefore associate with the record ALL VA clinical documentation not already of record pertaining to the treatment of the Veteran. THIS INCLUDES ANY RECORDS THAT HAVE BEEN ARCHIVED OR RETIRED. Records from the following facilities must be obtained: *Jesse Brown VAMC in Chicago, Illinois. *VA Outpatient Clinic in Crown Point, Indiana. *Any other VA facility where the Veteran has been treated since service separation. If these records are unavailable, a formal finding of unavailability which documents all search attempts to obtain the records, should be associated with the file and a letter should be sent to the Veteran informing him of their unavailability. 2. AFTER ASSOCIATING THE ABOVE DOCUMENTS WITH THE FILE OR DOCUMENTING THEIR UNAVAILABILITY, schedule the Veteran for VA examinations to obtain an opinion as to the nature and etiology of sleep apnea, hypertension, and a disorder manifested by fatigue. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: a. whether sleep apnea was caused by any in-service event, injury, disorder, or disease, or in way originated during service. b. whether sleep apnea manifested to a compensable degree within one year of service separation. c. whether hypertension was caused by any in-service event, injury, disorder, or disease, or in way originated during service. d. whether hypertension manifested to a compensable degree within one year of service separation. e. whether the Veteran has a disorder manifested by fatigue or whether fatigue is a symptom of another disorder. f. If the Veteran has a disorder manifested by fatigue, whether that disorder was caused by any in-service event, injury, disorder, or disease, or in way originated during service. g. If the Veteran has a disorder manifested by fatigue, whether that disorder manifested to a compensable degree within one year of service separation. The examiner's attention is drawn to the following: *February 1988 report of medical history and physical examination for service separation where nothing was diagnosed or noted related to the issues on appeal and the Veteran's blood pressure was 110/68. STR VBMS Entry 8/26/2014, p. 13-16. *September 1991 private treatment record stating a blood pressure of 148/98 and a diagnosis of hypertension. VBMS Entry 11/11/2015, p. 53. *September 1993 prescription from a private physician for a sleep study for sleep apnea. VBMS Entry 4/9/2013, p. 2. *December 1994 letter from VA neurologist stating that the Veteran was undergoing evaluation for a sleep disorder. VBMS Entry 4/9/2013, p. 3. *July 2006 VA treatment record stating that the Veteran reported that hypertension began in 1989 and sleep apnea in the early 1980's. LCM Entry 6/21/2016, p. 37. *April 2014 Statement in Support of Claim where the Veteran described in-service and post-service symptoms related to the issues on appeal. *VA problem list stating diagnoses of obstructive sleep apnea, essential hypertension, and fatigue. VBMS Entry 9/21/2017, p. 1. 3. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).