Citation Nr: 1311528 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-31 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial rating higher than 50 percent for sleep apnea with asthma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for sleep apnea with asthma and assigned a 50 percent rating. In February 2013, the Veteran testified before the Board at a hearing held via videoconference. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Additional development is necessary prior to further disposition of the claim. In this case, the most recent VA examination was completed in January 2009. The record since that time does not include any spirometry results to show whether the Veteran's asthma has worsened. Accordingly, in order to fairly assess the Veteran's claim, a new VA examination should be obtained. In that regard, the RO should also obtain the Veteran's complete VA treatment records and associate them with his Virtual VA claims file. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding treatment records relevant to all of his claim on appeal. After securing any necessary authorization from him, obtain all identified treatment records, as well as all available VA treatment records dated throughout the appeal period. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran. 2. Schedule the Veteran for a VA examination to assess the current severity of his sleep apnea and asthma. The claims file should be made available for review, and the examination report should reflect that such review occurred. A rationale must be articulated for all opinions provided, with citation to relevant medical findings. A pulmonary function test should be performed, if possible. With regard to his sleep apnea, the examiner should state whether there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or whether it has required a tracheostomy. With regard to his asthma, the examiner should state whether there are at least monthly visits to physicians for required care during exacerbations, or intermittent use of systemic corticosteroids. The examiner should specifically address whether the CPAP and bronchodilator medication can be used together. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include consideration of whether the asthma and sleep apnea should be rated separately. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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. 2012). _________________________________________________ M. E. LARKIN 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) (2012).