Citation Nr: 1316186 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 07-29 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for circulatory problems affecting the upper and lower extremities. 2. Entitlement to service connection for disability manifest by faintness, weakness, and joint pains, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from December 2001 to December 2005. The Veteran was awarded the Purple Heart Medal and the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) from a June 2006 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. The claims are now under the jurisdiction of the RO in Houston, Texas. The Veteran was afforded two VA hearings, one conducted at the RO by a Decision Review Officer in October 2009, and the other conducted at the RO by the undersigned Veterans Law Judge in May 2012. Transcripts of both hearings are on file and have been reviewed. In July 2012 the Board remanded these matters to the agency of original jurisdiction for further development. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to arrange for the Veteran to undergo an appropriate VA examination. The examination scheduled pursuant to the Board's July 2012 remand occurred in August 2012. After review of the complete evidentiary record, the Board has determined that compliance has now occurred - pertaining to the instant claim seeking service connection for circulatory problems affecting the upper and lower extremities -- with the Board's orders in the above-cited July 2012 remand and that the Board may now proceed with adjudication of the claim. The issue of entitlement to service connection for disability manifest by faintness, weakness, and joint pains, to include as due to undiagnosed illness is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is no competent medical evidence of circulatory problems affecting the upper and/or lower extremities. CONCLUSION OF LAW A disability manifested by circulatory problems affecting the upper and lower extremities was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The 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. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Concerning the appeal of the service connection claim now before the Board, seeking service connection for circulatory problems affecting the upper and lower extremities, the Veteran was provided notice that met these requirements in a March 2006 letter from the Waco RO. This notice complied with some of the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. This notice also included the following enclosures: "How You Can Help and How VA Can Help You" and "What the Evidence Must Show - Service connected comp." By separate letter, also dated in March 2006 from the Waco RO, the Veteran was provided notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded (see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)). For the reasons discussed above, therefore, the Board finds that VA has fulfilled its VCAA notification duties to the Veteran to the extent necessary. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his service connection claim. He has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to the VA notice. There is no evidence of any failure on the part of VA to further comply with the duty to notify that reasonably affects the outcome of this case. The duty to assist the appellant has also been satisfied in this case. Available post-service medical records are in the claims file and were reviewed by both the RO and Board in connection with the appellant's claim. The appellant has not informed VA of any obtainable existing medical records which may be helpful in the adjudication of his claims. VA is not on notice of any evidence needed to decide the claim which has not been obtained. A VA examination was, pursuant to the instructions set out by the Board in its July 2012 remand, afforded the Veteran in August 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the August 2012 VA examination (and included opinions) obtained in this case is adequate, as it was predicated on a reading of the service and post-service medical records in the Veteran's claims file. The examination considered all of the pertinent evidence of record, to include the Veteran's service and post-service records and provided a reason for the opinions stated, considering the Veteran's history and the records reviewed. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. In addition, all relevant, identified, and available evidence has been obtained. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)) (holding that a finding of continuity of symptomatology to presume service connection for a chronic disease applies only to the diseases listed at 38 C.F.R. § 3.309(a)). Circulation problems are not listed among the chronic diseases in 38 C.F.R. § 3.309(a). In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. The United States Court of Appeals for the Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran claims entitlement to service connection for circulation problems affecting his upper and lower extremities. As concerning his circulatory complaints, he testified in March 2009 that both his arms and legs sometimes "go numb." See page nine of transcript. At his hearing before the undersigned in May 2012, the Veteran testified that he had had circulation problems since he was wounded in 2004. See page three of transcript. The service treatment records show that in the course of a June 2001 examination no complaints or findings relating to circulating problems were reported. In April 2004 the Veteran sustained multiple injuries, including laceration to the right thumb, as well as multiple lower extremity shrapnel wounds. He also sustained an abdominal injury with liver laceration. See Eight-Month Limited Duty Board Extension examination report, dated in December 2004. Capillary refill testing, accomplished in April 2004, shows normal findings concerning all four extremities. An April 2005 medical record notes complaints of poor circulation to his extremities for a period of six weeks. He complained that his arms and legs "go to sleep" when he goes to sleep. Poor circulation was diagnosed. The service treatment records also note that the blast injuries sustained by the Veteran included his bilateral lower extremities, back, and right arm. A September 2005 Report of Medical Assessment shows complaints of circulation problems, according to the Veteran, brought about by his shrapnel wounds. The Veteran was afforded a VA Iraq Freedom examination in March 2006. In the course of the examination the Veteran made no complaints of circulation-related problems, and none were diagnosed. Later in March 2006, the Veteran was afforded a VA general medical examination. The examiner indicated that the Veteran's claims folder was not available for review. Regarding the Veteran's circulation, no discoloration of the extremities was observed. Nerve "condition" was found in both upper extremities, and no discoloration was present in the extremities. Pulses were intact in both lower extremities. To this, the Board parenthetically notes that in February 2013 the RO granted the Veteran service connection for peripheral neuropathy of the right upper extremity, left upper extremity, and right leg. Low blood pressure findings were reported. The diagnoses included reflex sympathetic dystrophy of the left leg and normal circulation of the lower extremities. VA ankle-brachial index testing with Doppler accomplished in March 2006 showed bilateral leg normal arterial flow. VA rheumatology test findings dated in May 2006 reveal that the Veteran's left leg had a normal appearance compared to the right, pulses were intact, and no skin color abnormalities were observed. The Veteran also submitted a statement at his May 2012 hearing in which he claimed that he had previously thought damage from his in-service shrapnel injuries was the cause of his circulation problems but now he felt that his symptoms more accurately resembled those of radiculopathy. He also complained of fibromyalgia-like symptoms. Review of a December 2009 VA fibromyalgia examination shows that the Veteran sustained a blast injury in 2004. The December 2009 VA fibromyalgia examination report found no evidence of fibromyalgia. Subsequent to the Board's July 2012 remand, a VA examination took place, wherein the examiner was asked to supply a medical opinion responding to the question of whether it was at least as likely as not that any circulation problems affecting the Veteran's extremities had their onset in or were medically related to his service. The examiner was also asked to note all current circulation-related problems. This examination, which took place in August 2012, shows that the examiner, in the course of the examination, had an opportunity to review the Veteran's claims file. The examiner commented that poor circulation means lack of adequate blood supply to affected organs or parts of the body. Examination showed no evidence of skin compromised from any circulatory diseases; the Veteran had normal hair growth of the lower legs and lower skin color throughout. Pulses were all full and equal. Significantly, the examiner observed that "[t]here has never been any evidence of lack of circulation." Analysis After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence on file is against a grant of service connection for circulatory problems affecting the upper and lower extremities. Subsequent to service, the Veteran initially sought service connection for this disorder in December 2005. See VA Form 21-526. Both the in-service and post-service medical record is devoid of findings relating to the presence of a disorder manifested by circulatory problems of the upper and lower extremities. While the Veteran was seen in service in April 2004 for complaints of poor circulation for a period of six weeks, and while a diagnosis of "poor circulation" was provided, this is seemingly merely a recitation of the symptoms provided by the Veteran and not a diagnosis as to a specific "disability." The Board notes that the Veteran is competent to testify as to his observable symptoms during and after active duty. The Board finds that their assertions are credible. However, the contentions by the Veteran that he incurred a circulatory disorder during active duty does not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case of whether the Veteran had circulatory problems affecting his upper and lower extremities during active duty or thereafter falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the assertions by the Veteran cannot constitute competent medical evidence in support of his claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau. The Veteran is competent to state that he observed the claimed symptoms during or after service. The Board finds him to be credible in this regard. However, he is not competent to attribute the coincidence of symptoms occurring during or after service as establishing the diagnosis and etiology of his current disability. As such, the Board finds that the assertions by the Veteran are outweighed by the August 2012 VA medical opinion. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Because the Veteran has no current disability related to circulatory problems affecting his upper and lower extremities, service connection must be denied. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009); Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b), Gilbert. ORDER Service connection for circulatory problems affecting the upper and lower extremities is denied. REMAND As noted above, the Board remanded the claim seeking service connection for disability manifested by faintness, weakness, and joint pains, to include as due to undiagnosed illness in July 2012. At that time the Board noted that the Veteran testified in October 2009 that his complaints of faintness and weakness were attributable to his Iraq "incident." See page seven of transcript. He added that his joint pain complaints, affecting his fingers, elbows, knees, and ankles, were also caused by injuries incurred in the military. See page eight of transcript. He essentially testified that no medical professional had ever attributed his complaints to a particular disorder. At his hearing before the undersigned in May 2012, the Veteran testified that his claimed joint pains affected several joints. See page seven of transcript. In addition, in July 2012 the Board noted that the Veteran was afforded a VA general medical examination in March 2006, at which time the examiner indicated that the Veteran's claims folder was not available for review. In the course of the examination the Veteran complained of right hip pain; however, the examiner commented that no joint dysfunction was present. No residuals from shrapnel wounds of the bilateral legs and feet were reported to be present. Regarding the Veteran's complaints of "faintishness," the examiner observed that the Veteran could not relate any associated factors with this and that there was no loss of consciousness. Low blood pressure findings were reported. The examiner also noted that complaints of weakness was synonymous with faintishness or dizziness. The diagnoses included reflex sympathetic dystrophy of the left leg, normal circulation of the lower extremities, status post right hand surgery residual, right hip tendonitis with shrapnel's, bilateral feet shrapnel injury, and fainting and weakness. Service connection is presently in effect for the following disabilities: post concussive disorder; liver laceration residuals with dumping syndrome; right thumb fracture and ulnar nerve laceration residuals; IED (improvised explosive device) residuals; left leg reflex sympathetic dystrophy; pulmonary puncture wound residuals; post concussive headaches; right hip shrapnel wound residuals to include tendonitis; shrapnel wound residuals of the bilateral legs and feet; tinnitus; mild cognitive disorder; right eyebrow shell fragment wound scar; and hemorrhoids associated with liver laceration. The Board also mentioned in July 2012 that even though the RO determined in September 2010 that the Veteran's complaints of faintness and weakness were symptoms of his service-connected post concussive disorder, medical evidence of such a relationship is not of record. The medical evidence of record, added the Board, also did not distinguish between symptoms caused by the Veteran's complained of circulation problems and symptoms of faintness, weakness, and joint pains versus those caused by his multiple service-connected disabilities. As such, in July 2012 the Board found that it was precluded from differentiating between symptomatology attributed to two disabilities in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board notes that where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. As a result, the Board's July 2012 remand included the following developmental instruction: 1. The RO/AMC should arrange for the Veteran to undergo an appropriate VA examination. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran, and the report of the examination should include discussion of the Veteran's documented medical history and assertions (to specifically include the Veteran's descriptions of his circulation problems affecting his extremities and also his complaints of faintness, weakness, and joint pain). All necessary tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent probability or greater) that such disabling circulation problems affecting his extremities and/or the Veteran's complaints of faintness, weakness, and joint pains -- if diagnosed -- had its onset in or is medically related to service. The examiner should clearly identify all current disabilities involving circulation-related problems as well as problems manifested by faintness, weakness, and joint pains. The examiner must also identify, what, if any -- separate from any already service-connected disability -- circulation disorder and disorder manifested by faintness, weakness, and or/ joint pain exists. Then, with respect to each such diagnosed disability, the examiner should provide a complete rationale for his/her opinion. This examination was conducted in August 2012. Specifically relating to the claim seeking service connection for disability manifest by faintness, weakness, and joint pains, to include as due to undiagnosed illness, review of the examination report shows that the examiner opined that it was "as likely as not" that the Veteran's complaints of faintness, weakness, and joint pains had their onset in or were medically related to his military service. He added that it "has already been established the validity of the service connection ailments for which the following complaints: weakness, joint, and faintness, are conditions of." The examiner added that the complaints of joint pain was "at least as likely as not" the result of the Veteran's established [in-service] multiple trauma. In other words, the examiner seemed to attribute the Veteran's complaints to a service-connected disability. The examiner also, conversely, opined that it was "as likely as not" that the current symptoms of weakness, fatigue, and lightheadedness were related to the recent diagnosis of obstructive sleep apnea. Essentially, the examiner in August 2012 seemed to opine that the Veteran's claimed disability manifested by faintness, weakness, and joint pains were related to service-connected disorders and to his nonservice-connected obstructive sleep apnea. Based on the above, the Board finds that the August 2012 VA examination is inadequate for the purposes of adjudicating the Veteran's claim (see Barr v. Nicholson, 21 Vet. App. 303 (2007)), and the claim must again be remanded. Stegall. In other words, the Board finds that the medical questions posed in the July 2012 Board remand to determine the etiology of the Veteran's claimed disability manifested by faintness, weakness, and joint pains have not been adequately answered. There is also no dispute in the evidentiary record that the Veteran has obstructive sleep apnea. However, as noted, he has not been service connected for this disability. The Board construes this evidence as raising an inferred issue of entitlement to service connection for obstructive sleep apnea. As such, the Board finds the Veteran's claim of service connection for disability manifested by faintness, weakness, and joint pains, to include as due to undiagnosed illness, is impacted by the outcome of his claim for entitlement to service connection for obstructive sleep apnea and therefore, the service connection claims are inextricably intertwined. The Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the Veteran's service connection claims must be remanded to the Agency of Original Jurisdiction in accordance with the holding in Harris. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should arrange for the Veteran to undergo an appropriate VA examination. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran, and the report of the examination should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent probability or greater) that obstructive sleep apnea had its onset in or is medically related to service. The examiner should also offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent probability or greater) that obstructive sleep apnea is proximately due to or chronically worsened by any other service connected disability. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear 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. 2. The RO/AMC must adjudicate the issue of entitlement to service connection for obstructive sleep apnea. All appropriate procedures should then be followed. The Veteran should be advised that, if he wishes to initiate an appeal of this issue (in the event the claim is denied), he must file a timely notice of disagreement following the issuance of a rating decision. 3. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action must be taken. See Stegall. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the Veteran until he is notified. The appellant has the right to submit additional evidence and argument on the matter 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 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. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs