Citation Nr: 1319269 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 07-17 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), vascular disabilities, and hypertension. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from April 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. This matter was previously before the Board in May 2010 and in September 2011 and was remanded for further action. It has now returned to the Board for further appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Service connection on a secondary basis may be warranted if the evidence reflects that a service-connected disability caused or aggravated a non-service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The clinical evidence of record is against a finding that the Veteran's service-connected disabilities caused his sleep apnea. However, the evidence does reflect that PTSD can, in some cases, aggravate sleep apnea. For a claim that is filed on or after October 10, 2006, VA may not concede that a nonservice-connected disability was aggravated by a service-connected disability "unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury." 38 C.F.R. § 3.310(b) (2012). The Veteran is responsible for establishing a baseline level of disability in aggravation claims, and where "no baseline can be established, no aggravation can be demonstrated." Claims Based on Aggravation of a Nonservice-Connected Disability, 71 Fed. Reg. 52,744, 52,745 (Sept. 7, 1996). In its September 2011 remand, the Board noted that VA had not provided proper notice to the Veteran regarding his obligation to provide evidence of a baseline severity of his sleep apnea in order to establish entitlement to service connection. The Board found that notice of such a requirement, although explained in the May 2011 Supplemental Statement of the Case, needed to be separately provided to the Veteran under the VCAA. In October 2011 correspondence, VA provided the Veteran with standard language regarding the evidentiary requirements for entitlement to service connection on a secondary basis; however, the notice failed to inform the Veteran that it was his obligation to provide evidence of the baseline severity of his sleep apnea. Thus, the Board finds that the Appeals Management Center (AMC) has not substantially complied with the mandates of the September 2011 remand. Where remand orders of the Board are not complied with, the Board errs as matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board finds that another remand is warranted to have the AMC provide proper notice. Accordingly, the case is REMANDED for the following action: 1. Provide appropriate VCAA notice to the Veteran. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(a), (e) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice shall inform the Veteran that it is the Veteran's responsibility under 38 C.F.R. § 3.310(b) (2012), to establish a baseline level of his sleep apnea disability (i.e. its level of severity prior to the onset of aggravation by a service-connected disability or the earliest medical evidence of its level of severity between onset of aggravation and its current level of severity). 2. After undertaking any other action deemed appropriate, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. 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 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). _________________________________________________ N. SNYDER Acting 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).