Citation Nr: 1323906 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 05-08 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, including as secondary to herbicide exposure. 2. Entitlement to service connection for coronary artery disease. 3. Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of the Vietnam War, Inc. WITNESSES AT HEARINGS ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from August 1966 to July 1968. These claims come before the Board of Veterans' Appeals (Board) on appeal of May 2004 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Hartford/Newington, Connecticut. The former RO certified these claims to the Board for appellate review. The Veteran and his spouse testified during hearings held at the RO before Decision Review Officers in April 2005 and August 2010 and the undersigned Veterans Law Judge in June 2006. In September 2010, the Veteran requested a Board videoconference hearing. In November 2012, he withdrew this request and asked that his appeal be considered based on the record. The Board therefore considers the most recent hearing request withdrawn pursuant to 38 C.F.R. § 20.702(e) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In October 2012, the RO certified the claim of entitlement to service connection for sleep apnea for appellate review. However, there are other claims pending on appeal. In March 2007, the Board stayed the claim of entitlement to service connection for diabetes mellitus, type 2, including as secondary to herbicide exposure, pending final decisions on the claims in Haas v. Nicholson, 20 Vet. App. 257 (2006) and Ribaudo v. Nicholson, 21 Vet. App. 16 (2007). The stay was applicable to the Veteran based on his receipt of a Vietnam Service Medal and his assertion of herbicide exposure while serving on the U.S.S. Forrestal off the shore of Vietnam. The Board deferred a decision on the claim of entitlement to service connection for coronary artery disease on the basis that it was inextricably intertwined with the claim being stayed. By Chairman's Memorandum 01-09-03 and predicated on a decision by the United States Court of Appeals of the Federal Circuit in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), VA lifted the stay. However, the RO did not finally adjudicate these claims. While the Veteran apparently advised the RO of these pending claims in June 2011 and April 2012, the RO construed the Veteran's inquires as a petition to reopen his claims. As these claims have been pending on appeal, the Veteran's mention of them does not constitute an application to reopen the claim. Since the Board stayed and deferred a decision on these claims in March 2007, the RO has associated with the record, both the claims and electronic (Virtual VA) files, evidence that is pertinent to these claims. The RO must consider this evidence in the first instance before the Board adjudicates these claims. There are outstanding records that must be secured in support of this appeal. According to a VA Form 21-0820 (Report Of General Information), the RO contacted the Veteran in April 2012 for permission to obtain his records from the Social Security Administration (SSA). The Veteran provided permission and responded that he is 100 percent disabled. It does not appear that the RO attempted to secure these records. The RO must attempt to do so. Finally, there is some question in the record as to whether the Veteran has withdrawn his appeal regarding service connection for sleep apnea, including as secondary to his PTSD. In a VA Form 21-0820 generated in April 2012, the RO questioned the Veteran about this claim and the Veteran indicated that he was not claiming it at the moment as he did not want it to delay his current appeal. Apparently viewing the Veteran's response as unconditional, the RO then found that the Veteran agreed that "he is not claiming a sleep condition...." The Veteran did not subsequently submit a written statement to this effect and in an October 2012 supplemental statement of the case, the RO treated the claim as the sole question on appeal. On remand, the Veteran should clarify his intent with regard to this claim. Provided the Veteran intends to continue pursuing this claim, additional medical information is needed for the Board to decide it. In September 2009, the Veteran submitted a statement from Mari Adachi, M.D, a Diplomate - American Board of Sleep Medicine, indicating that the Veteran's sleep-related breathing disorder/obstructive sleep apnea and restless leg syndrome with periodic leg movements disorder are causing or contributing to his significant sleep disruption and his PTSD is triggering or exacerbating the sleep disorders. Dr. Adachi provided no explanation for her opinion and the RO obtained another opinion from a VA physician's assistant regarding the etiology of the Veteran's sleep apnea. According to this individual, there is no current evidence to support PTSD as a trigger or exacerbation for obstructive sleep apnea Veteran's severe sleep apnea and such a relationship is unlikely. Again, the VA physician's assistant provided no explanation for her opinion. A probative opinion addressing the etiology of the Veteran's sleep apnea must therefore be obtained. Accordingly, the case is REMANDED for the following action: 1. Secure and associate with the claims file the records upon which SSA relied in awarding the Veteran disability benefits. 2. Contact the Veteran and ask him whether he intends to continue pursuing the claim of entitlement to service connection for sleep apnea, including as secondary to service-connected PTSD. If not, ask him to submit a written statement withdrawing the claim from appellate review. 3. If the Veteran wishes to continue pursuing this claim, transfer his claims file to a VA examiner for an opinion as to the etiology of the Veteran's sleep apnea. The purpose of the opinion is to determine whether the sleep apnea is related to the Veteran's active service or service-connected PTSD. The following considerations will govern the examination: * The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in the opinion generated as a result of this remand. The written opinion must reflect review of the claims folder - to include any evidence associated with the record as a result of this remand. * The examiner must provide an opinion on whether the Veteran's sleep apnea is the direct result of service (related thereto or initially manifested therein), or, if not, whether it is related to, or aggravated by, his PTSD. * If the sleep apnea is aggravated by the Veteran's PTSD, determine whether the medical evidence establishes the baseline and current levels of severity of the sleep apnea. * The examiner must provide a full statement of the reasoning behind the conclusions reached, based on his or her clinical experience, medical expertise, and established medical principles. * The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner. * If determining in his or her professional medical opinion that an opinion cannot be rendered without resort to speculation, the examiner must so state and explain why. 4. Readjudicate the claims being remanded in light of all of the evidence of record, including that which is in the Veteran's claims file and on Virtual VA. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case. Thereafter, subject to current appellate procedure, return these claims to the Board for further consideration. The Board intimates no opinion as to the ultimate outcome in this case, but advises the Veteran that he 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012) (requiring expeditious handling of all claims remanded by the Board or Court). _________________________________________________ VITO A. CLEMENTI 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).