Citation Nr: 0311047 Decision Date: 06/02/03 Archive Date: 06/10/03 DOCKET NO. 96-31 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an increased rating for lumbar spine disability, currently evaluated as 40 percent disabling. 3. Entitlement to an increased rating for tinea pedis, currently evaluated as 10 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: R. Edward Bates, Attorney at Law ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran had active service from March 1974 to December 1975. This case comes before the Board of Veterans Affairs (Board) on appeal from separate rating decisions issued by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded this claim in April 1999 for further development. The issues were before the Board again in December 2002 at which time the Board deferred adjudication pending further development pursuant to 38 C.F.R. § 19.9(a)(2). REMAND As indicated in the Introduction, the Board conducted additional development of the claim, pursuant to 38 C.F.R. § 19.9(a)(2), in December 2002. The development conducted by the Board has been completed and, pursuant to a recent decision by the Federal Circuit Court of Appeals, the case must be remanded to the RO for review of the evidence in the first instance. Disabled American Veterans v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003). The Board's review of the recent development includes the veteran's complaint of worsening back and left leg pain which resulted in a magnetic resonance imaging (MRI) scan being performed in September 2002. The MRI examination demonstrated disc space narrowing of L5-S1 and L2-L3 with neural foraminal stenosis at L5-S1. Effective September 23, 2002, VA amended its Schedule for Rating Disabilities pertaining to evaluating intervertebral disc syndrome (IVDS). See 67 Fed. Reg. 54345-54349 (August 22, 2002). In view of the regulatory changes and the potential increase in disability, the Board is of the opinion that the veteran should be afforded VA orthopedic and neurologic examinations to determine the current nature and severity of his lumbar spine disability. The Board further notes that, effective August 30, 2002, VA amended its Schedule for Rating Disabilities pertaining to evaluating skin disabilities. See 67 Fed. Reg. 49590-49599 (July 31, 2002). The RO should readjudicate the claim for an increased rating for tinea pedis under the new regulatory criteria. Finally, in December 2002, the Board ordered VA Ear, Nose and Throat (ENT) examination to determine the nature and etiology of the veteran's sleep apnea. The ENT examination report, which is undated, did not address the question posed by the Board and is inadequate for rating purposes. 38 C.F.R. § 4.2 (2002). On remand, the veteran should be afforded VA ENT examination which addresses the question as to whether it is at least as likely as not that the veteran's sleep apnea had its onset in service. The Board must defer adjudication of the TDIU claim pending completion of the development above. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2002). 2. Obtain the veteran's clinical records from the Augusta, Georgia VA Medical Center since April 2003. Also, contact the veteran to determine whether he has received treatment from any other VA or private medical facility since December 2002. 3. The RO should schedule the veteran for orthopedic examination to determine the current nature and severity of his lumbar spine disability. The examiner should be requested to perform any and all tests necessary and the results should be included in the examination report. The orthopedic examiner should be requested to report all orthopedic manifestations of the veteran's service connected lumbar spine disability, to include opinion as to the extent, if any, of functional loss of use of the lumbar spine due to pain, incoordination, weakness, pain on flare-ups and fatigability with use. If feasible such findings should be portrayed in terms of degrees of additional loss of motion. Send the claims folder to the examiner for review. 4. The RO should also schedule the veteran for neurologic examination to determine the current nature and severity of the chronic neurologic manifestations of his lumbar spine disability, if any. The examiner should be requested to perform any and all tests necessary and the results should be included in the examination report. The neurologist should provide opinion as to whether the veteran manifests Intervertebral Disc Syndrome (IVDS) of the lumbar spinal segment and be requested to report all chronic neurologic manifestations of the veteran's service connected lumbar spine disability, to include specifying any and all neurologic symptoms (e.g., sciatica, neuritis, neuralgia, sensory loss, etc.) with reference to the nerve(s) affected (e.g., sciatic nerve). Send the claims folder to the examiner for review. 5. The RO should schedule the veteran for another ENT examination to determine the nature and etiology of his sleep apnea. Send the claims folder to the examiner for review. The RO should request the examiner to review the claims folder, to include service medical records, his medical records proximate in time to his discharge from service and lay statements from the veteran's servicemates who describe the veteran's in-service symptoms. The RO should also request the examiner to provide opinion as to whether it is at least as likely as not that the veteran's sleep apnea had its onset in service. 6. Thereafter, the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the veteran and his representative, if any, should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. C.W. Symanski Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2002).