Citation Nr: 1736575 Decision Date: 08/31/17 Archive Date: 09/06/17 DOCKET NO. 06-27 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a sleep disorder, to include sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Teague, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty in the United States Marine Corps from May 1988 to May 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. In May 2016, the Board, in pertinent part, denied the Veteran's claim for service connection for a sleep disorder. The Veteran appealed that portion of the Board's decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In an April 2017 Order, pursuant to a Joint Motion for Remand, the Court vacated and remanded the sleep disorder claim to the Board for additional development and readjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his or her claim. 38 U.S.C.A. § 5103A (d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2016). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As indicated above, in April 2017 the case was vacated and remanded by the Court. In a Joint Motion for Remand (JMR), the parties agreed that the May 2013 VA examination was inadequate to allow the Board to make a fully informed decision. Specifically, the JMR states that the May 2013 VA examiner opined that the Veteran's sleep apnea was not related to active service because it was not diagnosed until 2003 but did not explain thoroughly enough if the sleep apnea was related to service. As such, a new examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Associate any VA treatment records since December 2016 with the Veteran's electronic claims file. 2. After completion of the above-specified development. Arrange for the Veteran to undergo a VA examination to assist in determining the nature and etiology of any currently diagnosed sleep disorder, to include sleep apnea. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. Following a review of the claims file, including any necessary diagnostic testing, the reviewing examiner should provide an opinion for the following questions: (a) Is it at least as likely as not (50 percent probability or greater) that any currently diagnosed sleep disorder, to include sleep apnea, is related to the Veteran's military service? In rendering the requested opinion, the VA examiner should specifically comment on a) The Veteran's indication of frequent trouble sleeping on the March 1992 Report of Medical History form that she completed at separation. b) The Veteran's lay reports of difficulty sleeping since returning from service. Next, the examiner should provide opinions for the following questions: (b) Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that any current sleep disorder , to include sleep apnea was caused by the Veteran's service-connected chronic fatigue syndrome, major depressive disorder, rheumatoid arthritis, fibromyalgia, or asthma? (c) Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that any current sleep disorder, to include sleep apnea was aggravated (i.e., worsened beyond normal progression) by the Veteran's service-connected chronic fatigue syndrome, major depressive disorder, rheumatoid arthritis, fibromyalgia, or asthma? A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. 3. Upon completion of the above development, the AOJ/AMC should review the claims file to ensure that all of the foregoing development has been completed. Then, the AOJ/AMC should re-adjudicate the issue of entitlement to service connection for a sleep disorder, to include sleep apnea. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. 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. SEESEL 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) (2016).