Citation Nr: 0812089 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 07-05 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for physical problems, claimed as sleep apnea. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for headaches. 4. Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from June 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied entitlement to service connection for physical problems, cocaine dependence with cocaine induced mood disorder, and tension headaches. The RO also denied entitlement to nonservice-connected pension benefits. The issues have been recharacterized as they appear on the cover page of the instant decision. The veteran presented testimony at a hearing before the Board in January 2008. The transcript of that hearing has been associated with the claims folder. The entire appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND A determination has been made that additional evidentiary development is necessary. Accordingly, further appellate consideration will be deferred and this case remanded for action as described below. Initially, the Board notes that RO denied entitlement to service connection for physical problems, as claimed by the veteran in October 2003. The veteran has since clarified that his physical problems have been identified as sleep apnea. Transcript at 2-3. The RO has not previously considered sleep apnea in adjudicating the veteran's claim for physical problems. It appears there are pertinent records of medical treatment for sleep apnea that have not been obtained. The veteran testified in January 2008 that he underwent a sleep study at the Mercy Care Hospital in San Diego, California, in 1995. Transcript at 3. He also indicated in VA Form 21-4138, Statement in Support of Claim, received in September 2005 that he sought treatment at the Sleep Center at the Wilshire VA Medical Center (VAMC) in August 2005. These records have not been associated with the claims folder. Such must be obtained upon remand. Under 38 C.F.R. § 3.159(c)(1), VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. Id. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile. Id. Under 38 C.F.R. § 3.159(c)(2), VA will make as many requests as are necessary to obtain relevant records from a Federal Department or agency. These records include military records. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Id. It also appears there may exist pertinent, outstanding medical records of the veteran for treatment of his mental health problems. Specifically, the veteran testified in January 2008 that he was treated at the VAMCs on Temple Street and Wilshire Boulevard in Los Angeles, California, between April 2005 and February 2006. Transcript at 6. He further testified that between January 1993 and December 2002 he was treated for depressive symptoms at Kaiser Permanente, 353 Joseph Avenue, San Francisco, California. These records have also not been associated with the claims folder. Such must be obtained upon remand. 38 C.F.R. § 3.159(c)(1), (2). After any additional records are added to the claims file, the veteran should be scheduled for appropriate examinations for the purpose of determining whether he has sleep apnea and/or an acquired psychiatric disorder related to service. See 38 U.S.C.A. § 5103A (d). The Board has determined that an addendum opinion is necessary prior to rendering a decision on the merits of the claim of entitlement to service connection for headaches. The veteran was afforded a VA examination in June 2004. The examiner diagnosed the veteran with a longstanding history of tension headaches and opined that there was little to suggest that they were related to sinusitis. The service medical records show the veteran complained of headaches throughout his period of service. They were frequently associated with sinusitis and upper respiratory infection. Upon separation examination in April 1974, the examiner noted the veteran had frequent headaches, which responded to treatment. The examiner separately noted the veteran had sinusitis, which also responded to treatment. (Emphasis added). Upon remand, the examiner must clarify whether tension headaches by themselves were related to the veteran's active duty service. Id. The Board has also determined that a medical opinion is necessary prior to rendering a decision on the merits of the claim of entitlement to nonservice connected pension benefits. A disability pension is payable to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to non-service-connected and/or service-connected disabilities not the result of his own willful misconduct. 38 U.S.C.A. § 1521(a). Absent a combined schedular 100 percent evaluation, the schedular criteria for non-service-connected disability pension are met when the veteran is unable to secure and follow substantially gainful employment because of disability and has one disability ratable at 60 percent or more, and, if there are two or more disabilities, has one which is ratable at 40 percent or more, and additional disability sufficient to bring the combined rating evaluation to 70 percent or more. 38 C.F.R. §§ 4.16, 4.17. In denying the veteran's claim, the RO discussed why the veteran's lumbar spine condition with right lower radiculopathy did not qualify him for an award of nonservice- connected pension benefits, finding it did not meet the necessary schedular evaluation for permanent and total disability for pension purposes. The Board finds, however, that the RO did not appear to give consideration to any of the other disabling medical conditions that the veteran reported as being present. Specifically, the veteran claims that his diabetes mellitus, hypertension, and a prostate condition, as well as his lumbar spine disorder, all combine to render him unemployable and totally disabled. If the medical evidence of record is insufficient, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, as the veteran has not been provided an examination in connection with his claim for nonservice- connected pension benefits, upon remand he should be scheduled to undergo a VA examination in order to determine whether he is unable to secure and follow substantially gainful employment because of the claimed disabilities. Finally, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. See also Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claims for service connection and nonservice connected pension benefits, but he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. Thus, on remand the RO should provide corrective VCAA notice. Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises the veteran that a disability rating and effective date will be assigned if service connection is awarded, to include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should contact the veteran and request that he identify all healthcare providers, VA and non-VA, inpatient and outpatient, who have treated him for sleep apnea, an acquired psychiatric disorder, and headaches since his discharge from service. He should be requested to complete and return the appropriate release forms so that VA can obtain any identified evidence. All identified private treatment records should be requested directly from the healthcare providers. Specifically, the RO should obtain: (a) all outstanding private medical records of the veteran for treatment of sleep apnea from Mercy Care Hospital in San Diego, California, to include a 1995 sleep study; (b) all outstanding private medical records of the veteran for treatment of depressive symptoms from Kaiser Permanente, 353 Joseph Avenue, San Francisco, California, dated between January 1993 and December 2002; (c) all outstanding VA outpatient treatment records of the veteran for treatment of sleep apnea and mental health problems from the VA clinic located on Wilshire Boulevard, in Los Angeles, California, dated between April 2005 and February 2006; and (d) all outstanding VA outpatient treatment records of the veteran for treatment of mental health problems from the VA clinic located on Temple Street, in Los Angeles, California, dated between April 2005 and February 2006. All information, which is not duplicative of evidence already received, should be associated with the claims file. 3. After any outstanding records are added to the claims file (to the extent available), and the veteran has had sufficient time to provide any response to the corrected VCAA notification letter, the RO should schedule the veteran for appropriate examinations to determine the nature and likely etiology of sleep apnea, if any, and any currently diagnosed acquired psychiatric disorder. The examiner should review the veteran's claims folder, noting all pertinent records of treatment of the claimed disorders. All clinical findings should be reported in detail. For any sleep apnea or acquired psychiatric disorder diagnosed, the examiner should be asked to opine whether it is at least as likely as not that such a disorder is due to or aggravated by any aspect of the veteran's period of service. With respect to the claim for an acquired psychiatric disorder, the examiner should make specific reference to the veteran's service medical records which note nervousness and depression due to personal problems upon his April 1974 separation examination. The examiner should explain in detail the rationale for any opinion(s) given. 4. The RO should contact the examiner who conducted the June 23, 2004, VA examination, if available, and request an addendum opinion. Otherwise, the request should be forwarded to the appropriate specialist and/or medical examiner. Specifically, the examiner should be asked to provide an opinion as to whether the currently diagnosed tension headaches are at least as likely as not due to or aggravated by any aspect of the veteran's period of service. The examiner should explain in detail the rationale for any opinion(s) given. 5. After any outstanding records are added to the claims file (to the extent available), and the veteran has had sufficient time to provide any response to the corrected VCAA notification letter, the RO should schedule the veteran for an appropriate examination to determine whether he is unable to secure and follow substantially gainful employment because of claimed disabilities, to include diabetes mellitus, hypertension, a prostate condition, and a lumbar spine disorder with right lower radiculopathy. The examiner should review the veteran's claims folder, noting all pertinent records of treatment of the claimed disorders. All clinical findings should be reported in detail. The examiner should explain in detail the rationale for any opinion(s) given. 6. After the completion of any indicated additional development, the AMC should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). Appropriate time is to be allowed for response. (CONTINUED ON NEXT PAGE) The purpose of this remand is to assist the veteran with the development of his claims. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examinations, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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. 2007). _________________________________________________ DENNIS F. CHIAPPETTA 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).