Citation Nr: 21031645 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-43 796 DATE: May 24, 2021 REMANDED The issue of an initial rating of more than 10 percent since January 18, 2012, for periodic limb movement disorder is remanded. REASONS FOR REMAND The Veteran served in the U.S. Marine Corps from August 2001 to November 2009. He served in Southwest Asia. In June 2018, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. The issue of an initial rating of more than 10 percent since January 18, 2012, for periodic limb movement disorder is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: In June 2020 the Board remanded this appeal. The RO did not comply with the remand directives in violation of Stegall v. West, 11 Vet. App. 268 (1998). The Board directed the RO determine whether the Veteran had a sleep study in June 2014 or following a referral noted in a June 2017 VA treatment record. The RO only requested that the Veteran submit records of such studies; there is no indication that they attempted to determine whether the studies were conductedby private providers, by VA providers, or by VA contracted providers. The Board also directed that if the Veteran did not undergo these sleep studies, the RO was to enter a formal finding and associate it with the file. This was not completed. The Board also directed that the RO obtain a VA medical opinion from a neurologist or somnologist. However, it obtained an examination and medical opinion from an internist. The examiner was asked to provide the frequency and severity of (1) insomnia, (2) other sleep disturbances, and (3) fatigue. The examiner did not provide the specific information required to rate this claim, but only provided non-specific information ("His limb movements can cause insomnia") and indicated that only the Veteran could answer these questions ("Most of his answers are subjective so regarding how sleepy he gets, only he knows..."). This is inadequate. Remand is required to ensure compliance with the Board's prior remand directives. The RO's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, VA treatment records added to the file since the June 2020 Board remand indicate that the Veteran underwent a home overnight sleep study in November 2019. The results of this study have not been associated with the file, which must be done on remand. THE REMAND DIRECTIVES FOLLOW. 2. Associate with the file the results of a November 2019 home overnight sleep study which was conducted by VA. 3. Determine whether the Veteran had a sleep study in June 2014 (other than the July 2014 VA central nervous system examination) or following the referral noted in a June 2017 VA treatment record. THIS DETERMINATION MUST BE MADE AS TO PRIVATE, VA, AND VA-CONTRACTED PROVIDERS. Sending the Veteran a letter asking for records is not sufficient for making this determination. VA and VA contract records must also be searched. If the Veteran had one or both sleep studies, records must be associated with the file. IF THE VETERAN DID NOT HAVE THESE SLEEP STUDIES COMPLETED, A FORMAL FINDING OF SUCH MUST BE MADE AND ASSOCIATED WITH THE FILE. 4. Obtain a VA medical opinion FROM A NEUROLOGIST OR SOMNOLOGIST. If necessary to respond to the inquiries below, schedule the Veteran for any required VA examinations to obtain an opinion as to the current nature of his periodic limb movement disorder. 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 obstructive sleep apnea is part of, related to, affected by, caused by, or aggravated by the Veteran's periodic limb movement disorder. (b.) The FREQUENCY AND SEVERITY of each of the following symptoms of the Veteran's periodic limb movement disorder: i. Insomnia. ii. Other sleep disturbances. (Continued on the next page) iii. Fatigue. iv. Any other symptoms that are part of the periodic limb movement disorder. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.