Citation Nr: 1308372 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 05-16 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a sinus disorder. 2. Entitlement to service connection for a chronic acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and major depressive disorder. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for an acquired right eye disorder to include blurred vision and double vision. 5. Entitlement to service connection for an acquired left eye disorder to include blurred vision and double vision. 6. Entitlement to service connection for sleep apnea. 7. Entitlement to a disability evaluation in excess of 10 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260 for the Veteran's left knee impairment. 8. Entitlement to an increased disability evaluation in excess of 10 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257 for the Veteran's left knee instability. 9. Entitlement to an increased disability evaluation for the Veteran's chronic headaches and left facial trauma residuals, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active service from March 1976 to March 1980. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Waco, Texas, Regional Office (RO) which increased the disability evaluation for the Veteran's left knee impairment from noncompensable to 10 percent disabling and effectuated the award as of November 21, 2003. In November 2004, the RO increased the evaluation for the Veteran's chronic headaches and left facial trauma residuals from noncompensable to 30 percent and effectuated the award as of July 28, 2004. In June 2007, the RO determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for a chronic sinus disorder. In March 2009, the RO denied service connection for PTSD, depression, mood swings, stress, hypertension, bilateral loss of vision, and sleep apnea. In April 2010, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. In September 2011, the Board reopened the Veteran's claim of entitlement to service connection for a sinus disorder and remanded that issue and the remaining issues to the RO for additional action. In September 2012, the Appeals Management Center (AMC) granted a separate 10 percent evaluation for the Veteran's left knee instability under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257 and effectuated the award as of November 21, 2011. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" files so as to insure a total review of the evidence. The issues of the Veteran's entitlement to both service connection for a sinus disorder, a chronic acquired psychiatric disorder, hypertension, an acquired right eye disorder, an acquired left eye disorder, and sleep apnea and an increased evaluation for his chronic headache disorder are REMANDED to the RO via the AMC in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. FINDING OF FACT The Veteran's left knee disorder has been objectively shown to be manifested by no more than chronic pain; a functional limitation of motion of 0 to 80 degrees with pain; mild medial-lateral joint instability; joint line tenderness; and no evidence of recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for the Veteran's left knee impairment under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.71a, Diagnostic Code 5260 (2012). 2. The criteria for an evaluation in excess of 10 percent for the Veteran's left knee instability under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and to Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The notice must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In addressing the Veteran's claim of entitlement to an increased evaluation for his left knee disability, the Board observes that VA has issued several VCAA notices to the Veteran including a November 2003 notice which informed him of the evidence generally needed to support a claim of entitlement to increased evaluation; what actions he needed to undertake; and how VA would assist him in developing his claim. The November 2003 VCAA notice was issued to the Veteran prior to the March 2004 rating decision from which the instant appeal arises. The Veteran's claim was readjudicated in the September 2004 statement of the case (SOC) and the multiple supplemental statements of the case (SSOC) issued to the Veteran. VA has secured or attempted to secure all relevant documentation to the extent possible. The Veteran was afforded both a November 2009 hearing before a VA Decision Review Officer (DRO) and an April 2010 hearing before the undersigned Acting Veterans Law Judge sitting at the RO. Hearing transcripts were prepared and incorporated into the record. The Board remanded the Veteran's appeal to the RO for additional action including a VA evaluation to ascertain the nature and severity of his left knee disability. The Veteran was afforded a November 2011 VA examination for compensation purposes. The examination report is of record. 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). The November 2011 examination report reflects that all relevant testing, including range of motion and joint stability, was performed. The examination report notes that Veteran's records had been reviewed and provided the requested opinion including the impact of the Veteran's left knee disability upon his vocational pursuits. The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). All identified and available relevant documentation has been secured to the extent possible. All relevant facts have been developed to the extent possible. There remains no issue as to the substantial completeness of the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2012). Any duty imposed on VA, including the duty to assist and to provide notification, has been met as set forth above. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In the circumstances of this case, additional efforts to notify or to assist the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). The Board will now turn to the merits of the Veteran's claim. II. Left Knee Disability A. Historical Review The Veteran's service treatment records relate that he was treated for left knee chondromalacia. The report of a December 1982 VA examination for compensation purposes states that the Veteran was diagnosed with "probable mild chondromalacia, left knee cap" and "rule out the possibility of internal derangement." In January 1983, the RO established service connection for left knee impairment; assigned a noncompensable evaluation for that disability; and effectuated the award as of October 5, 1982. In March 2004, the RO increased the evaluation for the Veteran's left knee impairment from noncompensable to 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260 and effectuated the award as of November 21, 2003. In September 2012, the AMC granted a separate 10 percent evaluation for the Veteran's left knee instability under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257 and effectuated the award as of November 21, 2011. B. Evaluation Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent disability evaluation. A 20 percent evaluation requires moderate impairment. A 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). Limitation of flexion of either leg to 45 degrees warrants a 10 percent evaluation. A 20 percent evaluation requires that flexion be limited to 30 degrees. A 30 percent evaluation requires limitation to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Limitation of extension of either leg to 10 degrees warrants a 10 percent disability evaluation. A 20 percent evaluation requires that extension be limited to 15 degrees. A 30 percent evaluation requires that extension be limited to 20 degrees. A 40 percent evaluation requires that extension be limited to 30 degrees. A 50 percent evaluation requires that extension be limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012). The average normal range of motion of the knees is from 0 to 140 degrees. 38 C.F.R. § 4.71 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). In his November 2003 claim for an increased evaluation, the Veteran advanced that his left knee disability had "worsened considerably." A November 2003 VA treatment record states that the Veteran complained of progressive left knee pain which necessitated the use of a cane. An assessment of left knee pain was advanced. A December 2003 VA treatment record states that the Veteran complained of left leg pain. He reported that he had experienced an episode of his left knee "giving out." At a December 2003 VA examination for compensation purposes, the Veteran complained of chronic left knee pain. He was observed to use a left knee brace. On examination of the left knee, the Veteran exhibited a range of motion of 0 to 80 degrees with pain; an inability to squat due to pain; joint tenderness; and no instability. Impressions of "internal derangement of the left knee" and "chronic pain" were advanced. An April 2004 magnetic resonance imaging (MRI) study of the left knee revealed findings consistent with chondromalacia and "small patellofemoral joint effusion." In his August 2004 notice of disagreement, the Veteran stated that his left knee disability impaired his ability to walk; to use the stairs; and to squat. In an October 2004 written statement, the Veteran conveyed that his left knee disability necessitated the use of analgesics and time off from work. At a July 2006 VA examination for compensation purposes, the Veteran complained of chronic left knee pain. He reported that he had missed approximately 40 days from work in the preceding year. The Veteran was observed to walk with a slight limp and to use a knee brace. On examination of the left knee, the Veteran exhibited a range of motion of 0 to 95 degrees without pain; suprapatellar popping with joint motion; and joint line tenderness. An impression of left knee degenerative joint disease was advanced. VA clinical documentation dated in September 2006 conveys that the Veteran complained of chronic left knee pain; occasional joint swelling; and frequent "buckling" of the knee associated with prolonged walking and climbing stairs. On examination of the left knee, the Veteran exhibited a "full" range of motion with pain. A February 2007 physical evaluation from C. Mitchell, M.D., indicates that the Veteran complained of left knee pain. The Veteran was observed to walk without a limp. On examination of the left knee, the Veteran exhibited a range of motion of 0 to 135 degrees; swelling; effusion; and no joint instability. An assessment of left knee synovitis was advanced. VA September 2009 physical evaluation from A. Spires, Jr., M.D., notes that the Veteran's left knee range of motion was "within normal limits." A September 2010 VA treatment record states that the Veteran complained of chronic left knee pain and popping. He reported that he "occasionally" used a knee brace. VA clinical documentation dated in October 2010 reflects that the Veteran exhibited a left knee range of motion of 0 to 115 degrees with pain. At the November 2011 VA examination for compensation purposes, the Veteran complained of left knee pain. He reported that he used both a left knee brace and a cane. On examination of the left knee, the Veteran exhibited a range of motion of 0 to 130 degrees with pain; joint line tenderness; 1+ medial-lateral joint instability; and no evidence of recurrent subluxation. The Veteran was diagnosed with left knee degenerative joint disease with "mild varus angulation." The examiner commented that the Veteran's left knee disability impairs his vocational activities as a train and bus equipment inspector. The Board has reviewed the probative evidence of record including the Veteran's testimony and written statements on appeal. The Veteran's left knee disability has been objectively shown to be manifested by no more than chronic pain; a functional limitation of motion of 0 to 80 degrees with pain; mild medial-lateral joint instability; joint line tenderness; and no evidence of recurrent subluxation. The Veteran asserts that his left knee disability is productive of significant left knee limitation of motion and other impairment which interferes with his vocational pursuits. While acknowledging that the Veteran's left knee disability clearly interferes with his physical pursuits including his vocational activities involving climbing into and around trains and buses, the Board observes that the Veteran's functional left knee limitation of motion and joint instability have not been shown on multiple physical evaluations to be productive of either moderate impairment due to instability; actual or functional limitation of flexion to 30 degrees; and/or actual or functional limitation of extension to 10 degrees. Left knee instability was not objectively shown prior to the November 2011 VA examination. In the absence of such findings, the Board concludes that the current 10 percent evaluations under Diagnostic Codes 5257 and 5260 adequately reflect the Veteran's left knee disability picture during all relevant time periods. 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260 (2012); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also evaluated whether the Veteran's claim should be referred for consideration of his entitlement to an extra-schedular evaluation for his service-connected left knee disability under 38 C.F.R. § 3.321(b)(1) (2012). The Court has clarified that there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular evaluation. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular evaluation. Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular evaluation inadequate. The established criteria found in 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012) reasonably describes the Veteran's left knee disability level and symptomatology, namely, chronic pain, limitation of motion, and joint instability. Therefore, the Board has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) (2012) is not warranted. ORDER An evaluation in excess of 10 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260 for the Veteran's left knee impairment is denied. An evaluation in excess of 10 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257 for the Veteran's left knee instability is denied. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that service connection for a chronic acquired psychiatric disorder, hypertension, right and left eye disorders, and sleep apnea is warranted secondary to the medication which he has been prescribed for his service-connected disabilities. At the hearings on appeal, the Veteran testified that his treating physicians had informed him that his psychiatric, hypertensive, right and left eye, and sleep apnea disabilities were caused, in part, by his prescribed medications. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been afforded a VA evaluation which addresses the relationship, if any, between the medications prescribed for his service-connected disabilities and his chronic acquired psychiatric disorder, hypertension, right and left eye disorders, and sleep apnea. In reviewing the November 2012 addendum to the August 2012 VA examination for compensation purposes, the Board observes that the examining VA physician's assistant concluded that the Veteran should be afforded a Ears, Nose, and Throat (ENT) evaluation in order to determined the etiology of his chronic sleep apnea and its relationship, if any, to his service-connected disabilities. The requested ENT evaluation has not been conducted. VA's failure to conduct further evaluations and studies as recommended by its own examiner constitutes a breach of its statutory duty to assist the Veteran. Hyder v. Derwinski, 1 Vet.App. 221 (1991). The report of a May 2009 VA traumatic brain injury (TBI) examination for compensation purposes notes that the Veteran was diagnosed with TBI residuals secondary to his inservice head trauma. In December 2009, the Veteran advanced a claim of service connection for chronic chemical exposure residuals including central nervous system impairment, neurobehavioral impairment, depression, fatigue, impaired concentration, and visual impairment. In October 2011, the Veteran advanced a claim for chronic head trauma residuals. The issues of the Veteran's entitlement to service connection for chemical exposure residuals and TBI residuals have not been adjudicated by the RO. The Board finds that those issues are inextricably intertwined with the certified issues of service connection for a sinus disorder, a chronic acquired psychiatric disorder, an acquired right eye disorder, and an acquired left eye disorder and an increased evaluation for the Veteran's chronic headaches and left facial trauma residuals given the disabilities' overlapping symptomatologies. Harris v. Derwinski, 1 Vet. App. 180 (19910 (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The fact that an issue is inextricably intertwined does not establish that the Board has jurisdiction of the issue, only that the Board cannot fairly proceed while there are outstanding matters that must be addressed by the RO in the first instance. Clinical documentation dated after September 2012 is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his chronic sinus disorder, acquired psychiatric disorder, hypertension, acquired right eye, acquired left eye and sleep apnea disabilities and his service-connected chronic headache disorder after September 2012, such as the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Associate with the record all VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after September 2012. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his chronic sinus disorder. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner advance opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified chronic sinus disorder had its onset during active service; is related to the Veteran's inservice left facial trauma and/or claimed inservice chemical exposure; otherwise is related to active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities and the medications prescribed for them. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Then schedule the Veteran for a VA examination to determine the nature and etiology of his chronic acquired psychiatric disorder. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner advance opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified chronic acquired psychiatric disorder had its onset during active service; is related to the Veteran's inservice left facial trauma including TBI residuals and/or claimed inservice chemical exposure; otherwise is related to active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities and the medications prescribed for them. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 5. Then schedule the Veteran for a VA examination to determine the nature and etiology of his chronic hypertension. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner advance opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that chronic hypertension had its onset during active service; is related to the Veteran's claimed inservice chemical exposure; otherwise is related to active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities and the medications prescribed for them. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 6. Then schedule the Veteran for a VA examination to determine the nature and etiology of his claimed chronic acquired eye disabilities. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. If no chronic eye disorder is diagnosed, the examiner should specifically state that fact. The examiner advance opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified chronic eye disorder had its onset during active service; is related to the Veteran's inservice left facial trauma, TBI, and/or claimed inservice chemical exposure; otherwise is related to active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities and the medications prescribed for them. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 7. Then schedule the Veteran for a VA ENT examination to determine the nature and etiology of his chronic sleep apnea. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner advance opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that the Veteran's chronic sleep apnea had its onset during active service; is related to the Veteran's inservice left facial trauma, TBI, and/or claimed chemical exposure; otherwise is related to active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities and the medications prescribed for them. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 8. After the requested examination has been completed, the examination reports should be reviewed to ensure that there is complete compliance with the directives of this remand. The examination reports should be returned to the examiners if they are deficient in any manner. 9. Then adjudicate the Veteran's entitlement to service connection for both chemical exposure residuals and TBI residuals. The Veteran should be informed in writing of the resulting decision and his associated appellate rights. The issues are not on appeal unless there is a notice of disagreement and a substantive appeal as to the issues. 10. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be provided a SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs