Citation Nr: 1815752 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 15-34 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a chronic sleep disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Harner, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from January 1954 to March 1955. This current appeal comes to the Board of Veterans' Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A video conference hearing took place in February 2018; a transcript is available in the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the hearing in February 2018 the Veteran testified that he experienced sleep interruptions three to five times per night because of neck pain and possibly because of intrusive memories and anxiety. He was asked if he ever woke up suddenly feeling like he was out of breath. He answered "[a]bsolutely, sir. Felt that way." Additionally, the Veteran went to the emergency room on at least one occasion due to shortness of breath while sleeping. Although the Veteran testified that he underwent a sleep test two and one half years earlier, the record shows that the Veteran has been examined for a generic sleep disorder, but not for sleep apnea. In a July 2016 VA primary care notation, a clinician noted the Veteran's report of trouble sleeping and waking up short of breath. He declined a referral for a sleep study on this and many subsequent primary care encounters. VA is tasked with a duty to assist veterans in substantiating their claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)&(d). VA is also responsible for supplying veterans with adequate examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran is credible to report symptoms of sleep apnea, but only a medical professional can make a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Because the Veteran reported apneic episodes, has a record of shortness of breath during sleep, and has not been given an examination for sleep apnea it is appropriate that he receive an adequate examination to test whether he suffers from sleep apnea or other separate sleep disorder or that his sleep difficulties are manifestations of other disorders including orthopedic pain, mental health disorders, or the effects of medication prescribed for other disorders. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Afford the Veteran the opportunity to identify or submit any additional relevant evidence and argument in support of his claims on appeal. Request that he identify any other relevant treatment that he has received or is receiving, and request that he forward any additional records to VA to associate with the claims file or provide VA with authorization to obtain such records. 2. Schedule the Veteran for an examination with the appropriate medical profession to determine whether the Veteran has a sleep disorder eligible for compensation from VA. The examiner is requested to provide opinions as follows: Does the Veteran have obstructive, central, or mixed sleep apnea or other separately diagnosed disorder manifesting as interrupted sleep? Are the Veteran's sleep difficulties manifestations of a mental health disability, such as the Veteran's non-service connected emotional instability reaction? Are the Veteran's sleep difficulties including nocturnal shortness of breath manifestations of a physical ailment such as the Veteran's service connected shoulder, chest, neck or headache disabilities or non-service-connected heart condition? Are the Veteran's sleep difficulties complications from medications prescribed for the service-connected disabilities? 3. Upon completion of the examination the medical professional shall review the Veteran's entire file and render a medical opinion as to his/her diagnosis regarding the Veteran's sleep disorder. 4. If the Veteran does suffer from a sleep disorder, the examiner is to explain whether the diagnosed disorder is at least as likely as not (50 percent probability or greater) service related or whether it is proximately due to or the result of a service-connected disease or injury. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. The RO is to readjudicate the issue on appeal. If the benefit being sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ J. W. FRANCIS 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).