Citation Nr: 0830668 Decision Date: 09/10/08 Archive Date: 09/16/08 DOCKET NO. 07-24 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for sleep apnea (claimed as secondary to duodenitis with hiatal hernia with reflux). 2. Entitlement to an increased evaluation for duodenitis with hiatal hernia with reflux, currently rated as 20 percent disabling. 3. Entitlement to an increased evaluation for hemorrhoids, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from October 1972 to October 1976. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2007 rating decision of the No. Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). In June 2008, the appellant testified at the RO before the undersigned Acting Veterans Law Judge. At that time, he submitted additional evidence with a waiver of consideration by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (referral of additional evidence to the AOJ is not necessary if procedural right is waived by the appellant or his representative). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND During a June 2008 hearing, the appellant testified that he had had private medical care and VA treatment for the claimed disabilities. He identified treatment with Mainline Dermott Clinic, Arkansas Sleep Disorder Diagnostic Center, and the medical practice of Dr. J. Gregory. He further submitted some copies of medical records from these facilities along with lab reports. The appellant testified that he visits his private physician Dr. Gregory or other physicians in her practice for all medical conditions and received VA treatment for service connected disorders. He testified that the lab reports submitted at the hearing show anemia, which he attributes to service-connected duodenitis with hiatal hernia and/or hemorrhoids. He testified that has had weight loss, or fluctuations, that support entitlement to increase. He further testified that he has sleep apnea due to his service- connected duodenitis with hiatal hernia and/or hemorrhoids, and that the internet article submitted at this hearing show a medical relationship between the conditions. The Board has carefully considered the appellant's testimony along with the additional evidence received at the June 2008 hearing in conjunction with the previously considered evidence of record. The Board finds that remand is necessary in order to comply with VA's duty to assist obligations. While the appellant provided some copies of private medical records, it is unclear whether all pertinent records have been obtained from the identified sources. As such, VA should request all pertinent records from the identified sources. Additionally, a VA examination has not been conducted to ascertain whether the appellant has sleep apnea due to service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (the threshold is low when considering whether there is an indication that a disability or persistent or recurring symptoms of a disability may be associated with the veteran's service); see also Duenas v. Principi, 18 Vet. App. 512 (2004) (The Court held that an examination must be conducted where the record before the Secretary (1) contains competent evidence that the veteran has persistent or recurrent symptoms of disease and (2) indicates that those symptoms may be associated with his active military service). As such, VA should schedule the appellant for a VA examination and obtain a medical opinion as to whether the appellant has sleep apnea due to service- connected duodenitis with hiatal hernia and/or hemorrhoids. Lastly, while a VA examination for duodenitis with hiatal hernia and hemorrhoids was conducted in January 2007, the examination report is incomplete. There is no indication as to whether the appellant has hemorrhoids with secondary anemia or fissures, or discussion as to whether the appellant has any symptoms identified by the VA rating schedule for hiatal hernia or duodenal ulcer, such as, pain, vomiting, material weight loss, incapacitating episodes, etc. The examiner states that the appellant has a "significant hemorrhoidal problem" but does not explain this comment. Therefore, VA should schedule the appellant for another VA examination to ascertain the severity of duodenitis with hiatal hernia and hemorrhoids. Accordingly, the case is REMANDED for the following action: 1. After securing the necessary release authorization, VA should obtain all records of private medical treatment by Mainline Dermott Clinic, Arkansas Sleep Disorder Diagnostic Center, and the medical practice of Dr. J. Gregory. 2. All VA treatment records should be obtained and associated with the claims folder. 3. The appellant should be scheduled for a VA examination to ascertain whether he has sleep apnea related to service- connected duodenitis with hiatal hernia with reflux and/or hemorrhoids. The examiner should review the claims folder. A complete rationale for all opinions must be provided. 4. The appellant should be scheduled for a VA examination to ascertain the severity of service-connected duodenitis with hiatal hernia with reflux and hemorrhoids. The examiner should indicate whether the appellant has persistently recurrent epigastric distress with dyphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The examiner should indicate whether the appellant has symptoms of pain, vomiting material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The examiner should indicate whether the appellant has hemorrhoids with persistent bleeding and with secondary anemia or with fissures. 5. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 Supp. 2008). _________________________________________________ ROBERT E. O'BRIEN Acting 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) (2007).