Citation Nr: 1753980 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 09-29 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a respiratory disability, claimed as upper airway resistance syndrome (UARS), to include as due to an undiagnosed illness based on service in Southwest Asia and/or as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1982 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Following a December 2012 Travel Board hearing, a July 2014 Board decision reopened and remanded the claim. It was again remanded in March 2016. This case was previously before the Board in July 2014, and March 2016. At those times, the Board remanded the case for additional development. Unfortunately, for the reasons discussed below, another remand is required. See Stegall v. West, 11. Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In an April 2017 outside medical opinion (OMO), the Veterans Health Administration (VHA) physician noted that while the Veteran had been diagnosed with UARS previously, under the current International Classification of Sleep Disorders, the diagnosis of UARS was subsumed under the diagnosis of obstructive sleep apnea. As a result, UARS was no longer considered a separate diagnosis. The private physician noted that the Veteran's prior sleep studies, in 2009, did not document sleep apnea. As the Veteran did not have a diagnosis of sleep apnea, under the current classification system, the Veteran also did not have a diagnosis of UARS. Because there is conflicting evidence throughout the claims file as to what, if any, diagnosis the Veteran has for his respiratory disability and problems sleeping, and because his last sleep study was in 2009, the Board finds that a new VA examination and sleep study are warranted. Accordingly, the case is REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1) (2017), make efforts to obtain all VA and private treatment records concerning the Veteran's sleep problems. 2. After the above has been completed, schedule the Veteran for an appropriate VA respiratory examination to determine the existence and etiology of any current diagnosis of a sleep disorder, to include obstructive sleep apnea and UARS. To the extent possible, a sleep study should be conducted, as the absence of sleep study evidence has been cited by a VHA doctor as a basis for not providing an UARS diagnosis. The claims folder and a copy of this remand should be made available to the examiner for review before the examination; the examiners must indicate that the claims folder was reviewed. The examiner is asked to opine: a. Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's symptoms of sleep disturbances, loud snoring, and tracheal constriction represent a chronic undiagnosed illness, or whether any of the symptoms represent a known clinical diagnosis. b. If a diagnosed sleep disorder is currently shown, or has been shown during the pendency of this appeal (i.e., since the claim was received in July 2008), indicate whether it is at least as likely as not (a 50 percent or greater probability) that it had its onset in service, or is otherwise related to service. c. If so, the examiner should state whether any sleep disorder is a congenital defect or a disease. If the examiner determines that the sleep disorder is a congenital defect, render an opinion as to whether the Veteran experienced a superimposed disease or injury during service that caused additional disability to the congenital defect. If the examiner determines that the sleep disorder is a congenital disease, render an opinion as to whether there is clear and unmistakable evidence that it was not aggravated beyond the normal progression, d. If the Veteran's sleep disorder is not a congenital defect or disease, the examiner should opine: Whether it is at least as likely as not that the sleep disorder is proximately due to or chronically aggravated by the Veteran's service-connected disabilities. Whether it is at least as likely as not that the sleep disorder is attributable to an "undiagnosed illness" or a "medically unexplained chronic multisymptom illness." e. If the Veteran's sleep disorder is found to be caused by a tracheal constriction, explain the cause of the tracheal constriction. If not, explain what caused it. 3. After the completion of the above instructions, and any other development deemed necessary, furnish the Veteran and his representative with a supplemental statement of the case and give him an opportunity to respond before the case is returned to the Board. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).