Citation Nr: 1317898 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-11 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for muscle tension. 2. Whether new and material evidence has been received to reopen a claim for service connection for hypertension. 3. Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected PTSD. 4. Entitlement to an increased rating for PTSD. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to March 1972, including service in the Republic of Vietnam during the Vietnam Era. This appeal to the Board of Veterans' Appeals (Board) is from March 2007, July 2011, and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The March 2007 rating decision denied service connection claim for obstructive sleep apnea. The July 2011 rating decision denied an increased rating for PTSD higher than 30 percent. The January 2012 rating decision denied petitions to reopen claims for service connection for hypertension and muscle tension, based on lack of submission of new and material evidence; and also denied a claim for a TDIU. A July 2012 rating decision increased the rating for the Veteran's PTSD from 30 to 50 percent, effective February 18, 2011, the date of receipt of the claim for an increased rating for PTSD, and recharacterized the disability as PTSD with major depressive disorder (MDD) and with history of substance/alcohol abuse. He has since continued to appeal, requesting an even higher initial rating. A Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a videoconference hearing at the RO in March 2013, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Virtual VA electronic claims file. The issues of entitlement to service connection for obstructive sleep apnea, entitlement to an increased rating for PTSD, and entitlement to a TDIU are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. An unappealed March 2006 rating decision denied service connection for muscle tension. 2. An unappealed March 2006 rating decision denied service connection for hypertension. 3. An unappealed January 2009 rating decision confirmed prior denials of claims for service connection for muscle tension and hypertension. 4. The additional evidence since received since the January 2009 decision is cumulative or redundant of the evidence of record at the time of that decision and does not raise a reasonable possibility of substantiating the claims for muscle tension and hypertension. CONCLUSIONS OF LAW 1. The January 2009 rating decision denying service connection for muscle tension and hypertension is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen claims for service connection for muscle tension and hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA's duty to notify under has been met by letters from the RO in August 2011 and November 2011 informing him of the criteria for establishing a petition to reopen a claim for service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. § 3.159(b)(1). Those letters addressed all notice elements and predated the initial adjudication by the in January 2012. In addition, the August 2011 notice letter sufficiently explained the bases of the prior denials for muscle tension and hypertension. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO's notices were in the preferred sequence, without timing or content defects. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his petition to reopen the respective, service-connection claims for muscle tension and hypertension, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Bernard v. Brown, 4 Vet. App. 384 (1993). A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining the evidence necessary to substantiate his claims during the course of this appeal. The RO has obtained service medical records, service personnel records, and VA treatment records. The Veteran also submitted additional records and written statements in support of his claims. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. During the pendency of the petition to reopen the claims for muscle tension and hypertension, the Veteran was not provided with a VA compensation medical nexus opinion on the etiology of the claimed muscle tension and hypertension. The duty to provide a VA examination for a medical nexus opinion only arises once there is new and material evidence to reopen a previous and finally decided claim. 38 C.F.R. § 3.159(c)(4)(iii) (2012). Because the Board finds no new and material evidence to reopen his service-connection claims for muscle tension and hypertension, there is then no requirement to have him examined for a medical nexus opinion concerning these claims. The Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to these claims. Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the Board finds that VA has complied with the duty to assist requirements. 38 U.S.C.A. § 5103A (West 2002). A March 2006 rating decision initially denied service connection for muscle tension, including as secondary to service-connected PTSD. The RO denied the muscle tension claim because no chronic muscle tension disability was present based upon lack of clinical diagnoses and findings of a muscle tension disability, there was no in-service incurrence of muscle tension disability based upon review of service medical records, and no evidence of a nexus to service. There was also no evidence showing a connection between service-connected PTSD and muscle tension, so that secondary service connection was also denied. The March 2006 rating decision also denied service connection for hypertension, including as secondary to service-connected PTSD. The RO denied the hypertension claim because there was no in-service incurrence of hypertension on review of service medical records; no evidence hypertension manifested to a compensable degree within one year of separation that warranted presumptive service connection; and no evidence of a nexus to service. There was also no medical evidence showing a clinical relationship between service-connected PTSD and hypertension, so secondary service connection was also denied. Then, the Veteran initiated an appeal by filing a timely notice of disagreement in May 2006 with the March 2006 rating decision's denial of the service-connection claims for muscle tension and hypertension. However, after the RO issued a statement of the case in April 2007, addressing those issues, the Veteran did not proceed to perfect his appeal by filing a timely substantive appeal. Appellate review of a rating decision is initiated by the timely submission of a notice of disagreement and, after a statement of the case has been furnished, is completed by the timely submission of a substantive appeal. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2012). Failure to perfect an appeal renders a rating decision final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2012). Therefore, the RO's March 2007 rating decision, which denied service connection for muscle tension and hypertension, is final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). Relevant evidence was associated with the claims file after the final March 2006 rating decision's denial of service connection for muscle tension and hypertension. The Veteran was provided a November 2006 VA examination and April 2007 addendum opinion by the examiner, which provided pertinent evidence on the etiology of his hypertension. The November 2006 VA examiner stated, "I believe that his PTSD is possibly a contributor to his hypertension, but it is not a cause per se of his hypertension." In a later addendum opinion in April 2007, the examiner clarified that the hypertension was less likely than not caused by his PTSD. In the same addendum, however, that examiner continued to raise the possibility that PTSD had aggravated his hypertension. Specifically, the April 2007 addendum opinion stated that when the Veteran had times that his PTSD was more active and he was under more stress, the examiner believed that it might worsen his blood pressure readings at that time. It was not uncommon for people who had problems with anxiety to have increased blood pressure readings during the times that they were anxious. However, the examiner did not believe that PTSD caused the Veteran's hypertension. Subsequently, the RO's January 2009 rating decision confirmed the RO's March 2006 denial of the service connection for muscle tension and hypertension. That decision found that there was insufficient medical evidence submitted to show his service-connected PTSD caused or chronically aggravated his muscle tension or hypertension. The record at the time of this decision contained the Veteran's service medical records, VA and private treatment records, personal statements, Internet medical literature, and a November 2006 VA examination report and April 2007 addendum opinion report. Because the RO's January 2009 rating decision was not timely appealed, the RO's denial of the service-connection claims for muscle tension and hypertension is final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). Although the Veteran submitted statements in March 2010 and February 2011 that indicated he wished to formally appeal the January 2009 rating decision, the Board notes that those statements did not constitute a timely notice of disagreement with the January 2009 decision since these statements were submitted after the expiration of the one year period for initiating an appeal. 38 C.F.R. §§ 20.201, 20.302 (2012). The Board has the jurisdictional responsibility to determine whether there is new and material evidence to reopen this claim since the last final and binding decision, irrespective of what the RO may have determined concerning this, because this threshold preliminary determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002). When determining whether a claim should be reopened, the Board determines whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108 (West 2002); Smith v. West, 12 Vet. App. 312 (1999). If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167 (1996). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New evidence is existing evidence not previously submitted. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The submission of new and material evidence is a jurisdictional prerequisite to the Board's review of an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167 (1996); McGinnis v. Brown, 4 Vet. App. 239 (1993). Therefore, the Board will undertake a de novo review of the new and material evidence issue. The Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App.110 (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board must consider the evidence added to the record since the last final and binding decision in January 2009. That includes recent VA outpatient treatment records, private treatment records, and Veteran's personal statements. Evans v. Brown, 9 Vet. App. 273 (1996). The VA and private medical treatment records from Covenant Medical Center show continuing treatment for hypertension, but do not provide any opinions as to potential etiology to service. The March 2011 and November 2011 VA PTSD examination are unremarkable for any opinions concerning a potential secondary relationship between PTSD and hypertension, including whether PTSD caused or chronically aggravated hypertension. None of the additional evidence addresses whether the Veteran incurred hypertension during service or manifested hypertension to a compensable degree within one year following service. Therefore, that additional new evidence does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The additional VA and private medical records from Covenant Medical Center still do not provide any indication that the Veteran has been diagnosed with a current, chronic disability of any type to account for his claimed muscle tension. There was inconclusive evidence of a current muscle tension disability at the time of the prior final decision, and that missing, preliminary element of the claim still has not been substantiated. Degmetich v. Brown, 8 Vet. App. 208 (1995). There is also no additional competent opinion evidence supporting a medical nexus to service for any current muscle tension disability, or for the notion that PTSD caused or chronically aggravated such a disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Therefore, the new evidence submitted is not material because it does not create a reasonable possibility of substantiating the claim. The additional medical evidence listed above is new in that it was not previously before agency decision makers at the time of the final January 2009 rating decision. However, none of this medical evidence is material for purposes of reopening the claim of entitlement to service connection for the muscle tension or hypertension claims. The additional medical records are either cumulative or redundant of the evidence of record or do not raise a reasonable possibility of substantiating the claims. Further, the Veteran has made new personal statements that muscle tension and high blood pressure are secondarily related to service-connected PTSD or are the direct result of PTSD. However, those personal statements were already considered by the RO's previous January 2009 denial. His newly submitted personal statements do not serve to establish the previously missing elements, but rather, merely reiterate arguments considered by the RO when earlier denying this claims. Then, just as now, he was attributing a history of muscle tension and high blood pressure to his service-connected PTSD on a secondary basis. Therefore, those statements are cumulative of arguments previously advanced and are not new and material evidence. The additional statements to the November 2006 VA examiner and personal statements from the Veteran have repeatedly asserted the same argument, that his current muscle tension and hypertension are either due to or aggravated by his service-connected PTSD. Aside from the fact that those assertions are cumulative of previously considered contentions, the Board emphasizes that testimony simply reemphasizing the position previously considered in the prior final rating decision is not new or material, and is not sufficient to reopen the claim. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decisionmakers at time of prior final disallowance of the claim is not new evidence); Reid v. Derwinski, 2 Vet. App. 312 (1992). Arguments based on what amounts to the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. Untalan v. Nicholson, 20 Vet. App. 467 (2006). The Veteran's additional medical records and personal statements do not provide any relevant details regarding the existence of his claimed current, chronic muscle tension disability that were not known or advanced at the time of the prior denial. Similarly, they do not provide any relevant details regarding the etiology of the claimed muscle tension or hypertension disabilities, or show competent evidence that that those disabilities were caused by or aggravated by service-connected PTSD. Lastly, among the new evidence is a personal statement from the Veteran, dated in June 2012, which attributes his hypertension as due to exposure to herbicides during service in Vietnam. The Board acknowledges that the Veteran served in the Republic of Vietnam during the Vietnam Era and it is presumed he was exposed to herbicides while there. However, hypertension is not a listed disease eligible for presumptive service connection. 38 C.F.R. § 3.307(a)(1)(6)(iii) (2012); 75 Fed. Reg. 53,202 (Aug. 31, 2010) (hypertension is specifically excluded as a disease presumed to have resulted from exposure to herbicides). The Veteran asserts he has had persistent high blood pressure symptoms due to herbicide exposure during active duty. The Board emphasizes that he is not competent to diagnose hypertension or attribute alleged high blood pressure symptoms to hypertension either during or since active duty service; or to make statements regarding the etiology of his current hypertension. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(a)(2) (2012). First, high blood pressure testing requires clinical testing, not lay observation, so he is not competent to assert that he experienced hypertension since service. Second, hypertension is not diagnosed by unique and readily identifiable features and does not involve a simple identification that a layperson is competent to make. Rather, the determination of both the diagnosis and etiology of hypertension requires medical expertise that the Veteran fails to possess. Therefore, the Veteran's claim that hypertension is the result of exposure to herbicides is not competent evidence and cannot create a reasonable possibility of substantiating the claim. The Board concludes that the evidence does not establish a fact necessary to substantiate the claim or trigger any duty to assist. Therefore, the claims for service connection for muscle tension and hypertension disabilities cannot be reopened. 38 C.F.R. § 3.156(a) (2012). Accordingly, it is the determination of the Board that new and material evidence has not been submitted with regard to the claims. The claims for service connection for hypertension and chronic muscle tension disability are not reopened and the benefits sought on appeal with regard to those claims remain denied. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed chronic muscle tension and hypertension claims, the claims remain denied. Annoni v. Brown, 5 Vet. App. 463 (1993). ORDER As new and material evidence has not been received, the Veteran's application to reopen a claim of entitlement to service connection for muscle tension is denied. As new and material evidence has not been received, the Veteran's application to reopen a claim of entitlement to service connection for hypertension is denied. REMAND Unfortunately, a remand is required for the remaining claims for service connection for sleep apnea, increased rating for PTSD, and for TDIU. 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 claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran primarily contends that his obstructive sleep apnea is secondary to his service-connected PTSD, and also asserts he has suffered sleep problems since discharge from the military, such as in a May 2006 claim and in a March 2010 statement. Service connection may be established on a secondary basis for disability that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a) (2012). Secondary entitlement is also available when a service-connected disability has aggravated a nonservice-connected disability in question, but compensation is limited to the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). A November 2005 VA sleep study found the Veteran had significant obstructive sleep apnea, so he has shown a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). A November 2006 VA examination and opinion of record addressing his contention of secondary service connection due to PTSD. The examiner opined that, "In regards to the obstructive sleep apnea, there is no evidence in the literature that there is a link between PTSD and obstructive sleep apnea. I believe it is more likely than not secondary to his obesity and body habitus, not his PTSD. However, there does appear to be a link between obstructive sleep apnea and PTSD with a small study showing that if you successfully treat the obstructive sleep apnea in patients who have PTSD and their sleep improves, their PTSD symptoms also improve." Thus, the examiner appears to opine against the possibility that his service-connected PTSD caused his obstructive sleep apnea. However, the November 2006 VA examiner's opinion is inadequate. The Board emphasizes that the examiner did not provide any statement on the possibility that PTSD has aggravated the Veteran's hypertension, which is another theory of secondary service connection that must be considered. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Moreover, the Veteran's the lay statements of sleep problems since service are competent since relating a history of insomnia symptoms that have been observed and experienced by the Veteran is within the realm of lay experience. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(a)(2) (2012). There is no indication that an examiner has considered his competent lay statements in offering an opinion on the possibility of direct etiology to service. The Board finds a remand is necessary for a VA examination and opinion on whether the Veteran's current obstructive sleep apnea is etiologically linked to service, and whether his service-connected PTSD caused or aggravates his sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran's PTSD must be reexamined to reassess its severity. The most recent VA examination to assess the severity of his service-connected psychiatric disability was in November 2011. Since that examination, the Veteran testified at his March 2013 hearing that his condition has worsened in severity, including that he has remained unemployed since the last exam, and had increased symptoms of depression, anxiety, and heightened anger. The Board finds sufficient evidence to warrant a VA examination to assess the current severity of PTSD. 38 C.F.R. § 3.327 (2012). It appears that the last VA examiner in November 2011 opined against the possibility that his PTSD renders him unemployable, but the rationale was unclear, citing only that the Veteran has a Master's degree in industrial management and is articulate. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. Barr v. Nicholson, 21. Vet. App. 303 (2007). The examiner did not explain the role of the Veteran's PTSD may have had in potentially contributing to termination from his last job in 2011 or in affecting his ability to obtain and maintain employment. The Veteran has submitted personal statements and records of unsuccessful job searches that indicate he has had great difficulty in obtaining a job after being fired from his last one in August 2011. On remand, the VA examiner should medical opinion addressing whether the Veteran's service-connected PTSD impacts his ability to secure or follow substantially gainful employment. In addition, the RO should confirm if there are any outstanding private or VA treatment records. Any additional VA or private treatment records that are potentially relevant would need to be obtained before deciding his appeal. 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. §§ 3.159(c) (2002). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all relevant VA, or private medical records that may be identified by the Veteran, that are not already of record. 2. Then, schedule a VA examination to determine the nature and etiology of claimed sleep apnea. The examiner must review the claims file and must note that review in the report. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. The rationale for all requested opinions shall be provided. The examiner should respond to the following: a) Confirm whether the Veteran currently has a sleep apnea disability, including obstructive sleep apnea. b) For any sleep apnea disability found, is at least as likely as not (50 percent or greater probability) that sleep apnea had its clinical onset during the Veteran's active service, or is otherwise related to active service, including to any in-service injury or disease? c) For each disability found, is it at least as likely as not (50 percent or greater probability) caused or aggravated by the Veteran's service-connected PTSD? 3. Then, schedule a VA examination to determine the severity of the Veteran's psychiatric disability. The examiner must review the claims file and must note that review in the report. The examiner should perform any diagnostic tests deemed necessary. The examiner should elicit from the Veteran a complete history of his complaints of a psychiatric disability, including any medical treatment, and note that, in addition to the medical evidence, the Veteran's lay history has been considered. The examiner should provide specific findings addressing the rating criteria for mental health disorders. 38 C.F.R. § 4.130 (2012). The examiner should identify the current nature of any current psychiatric disability, in accordance with DSM-IV criteria, and assign a Global Assessment of Functioning (GAF) score. The examiner should also measure and record the frequency and severity of any symptomatology, and note any manifested impairment, associated with his psychiatric disability. The examiner should specifically opine whether the Veteran's PTSD disability results in a marked interference with employment, to include causing him to be unemployable. The examiner should explain the rationale for any opinion given, to include discussion of obstacles and challenges he might face, and his capability for employment in light of his past employment experience. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. 4. Then readjudicate the claim. If the 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 matters 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 United States Court of Appeals for Veterans Claims for 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 Department of Veterans Affairs