Citation Nr: 1314178 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 10-06 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for bilateral cataracts. 3. Entitlement to an increased rating in excess of 10 percent for peripheral neuropathy of the right upper extremity. 4. Entitlement to an increased rating in excess of 10 percent for peripheral neuropathy of the left upper extremity. 5. Entitlement to an increased rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 6. Entitlement to an increased rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from December 1967 to December 1987. This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2013, a video-conference Board hearing was held before the undersigned. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Review of the record shows that, for each of the issues before the Board, additional development is necessary. Regarding the issue of entitlement to service connection for sleep apnea, the Veteran has contended in testimony before the undersigned that his sleep apnea was related to his service connected disabilities, including diabetes mellitus or hypertension. The Veteran has not been afforded a VA examination to ascertain the possible etiology of his sleep apnea and an examination should be provided prior to appellate consideration. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Regarding the issue of entitlement to service connection for bilateral cataracts, in statements received from the Veteran's private physician, it was indicated that the Veteran's service-connected diabetes mellitus was known to accelerate the development of cataracts. The record includes two VA examinations with medical opinions that essentially state that cataracts are not a complication of diabetes mellitus. While an opinion regarding a relationship with the Veteran's diabetes mellitus has been obtained by the RO, no opinion regarding whether any of his other service-connected disabilities cause or aggravate his cataracts has been obtained, nor has an opinion been obtained as to whether diabetes mellitus aggravates the cataracts. The Board finds that the requirements for a VA examination regarding these contentions have been met. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability, but only that degree, over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Regarding the issues of entitlement to increased ratings for peripheral neuropathy of the extremities, during his testimony before the undersigned at the Board hearing in January 2013 the Veteran stated that the neuropathy had worsened in the years since the most recent VA examination, which was conducted in November 2009, over three years ago. Therefore, a more current examination is needed. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current nature and etiology of sleep apnea. The examiner must review the claims file and must note that review in the report. The examiner should provide a rationale for all conclusions reached. After a review of the documents, history, and examination of the Veteran, the examiner should provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that sleep apnea is caused by any of the Veteran's service-connected disabilities (hypertension, diabetes mellitus with erectile dysfunction, and peripheral neuropathy of the upper and lower extremities)? b) Is it at least as likely as not (50 percent probability or greater) that sleep apnea is aggravated (permanently worsened in severity beyond the natural progress of the disorder) by any service-connected disability? The examiner should specifically consider and discuss the Veteran's contentions related to the etiology of his sleep apnea. 2. Schedule the Veteran for a VA examination to ascertain the current nature and etiology of bilateral cataracts. The examiner must review the claims file and must note that review in the report. The examiner should provide a rationale for all conclusions reached. After a review of the documents, history, and examination of the Veteran, the examiner should provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that bilateral cataracts are caused by any of the Veteran's service-connected disabilities (hypertension, diabetes mellitus with erectile dysfunction, and peripheral neuropathy of the upper and lower extremities)? b) Is it at least as likely as not (50 percent probability or greater) that bilateral cataracts are aggravated (permanently worsened in severity beyond the natural progress of the disorder) by any service-connected disability? The examiner should specifically consider and discuss the Veteran's contentions related to the etiology of the cataracts and the comments made by the private physician. 3. Schedule the Veteran for a VA neurologic examination to determine the current extent of the peripheral neuropathy of each of his extremities. All indicated studies should be performed, as deemed appropriate by the examiner. The examiner must provide a thorough description of the appellant's service-connected peripheral neuropathy and render objective clinical findings concerning the severity of the disabilities. The examiner must review the claims file and must note that review in the report. The examiner should provide a rationale for all conclusions reached. 4. Then readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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).