Citation Nr: 1324500 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-17 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 60 percent for sleep apnea with restrictive lung disease (claimed as asthma and reactive airway disease). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from February 2004 to February 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This appeal was the subject of a March 2011 Board decision which increased the Veteran's evaluation for this disability from 50 percent to 60 percent. This rating increase was effectuated in an August 2011 RO decision. However, an August 2012 United States Court of Appeals for Veterans Claims (Court) decision vacated and remanded this Board decision insofar as it denied an evaluation in excess of 60 percent for further development. As such, this claim again returns before the Board. 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 In the prior March 2011 Board decision, the Board noted that the Veteran had submitted additional Army and private medical records in May 2009, and did not waive initial review of this evidence by the agency of original jurisdiction (AOJ) pursuant to 38 C.F.R. § 20.1304(c). The Board stated that it had considered whether it must remand the Veteran's claim for consideration of this new evidence. However, it found that such a remand was not necessary because the records described tests conducted and treatment received prior to the February 11, 2008, effective date of the Veteran's disability rating. The Board therefore found that these records were not pertinent to the current appeal, and a remand for AOJ consideration of this evidence is not necessary. The Court however, in an August 2012 decision, disagreed with the Board's finding. Citing Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009), the Court found that, regardless of effective date, the clear mandate of the VA regulations is that a Veteran's disability must be evaluated in light of its whole recorded history. The Court specifically noted that, insofar as the service medical records submitted by the Veteran contained pulmonary function test results and other findings regarding the severity of his sleep apnea, restrictive lung disease, and bronchial asthma, this information would inform an adjudicator of the Veteran's complete medical history for those conditions, and would therefore be pertinent to the evaluation of those conditions. As such, the Court found that this decision must be vacated in order that these records might be considered by the RO in the first instance. In this regard, the Board notes that the Veteran has recently submitted additional treatment records in support of his appeal, which has again not been accompanied by a waiver of initial consideration by the AOJ. In addition, the Court noted that the Board found that the Veteran's use of prescribed daily doses of Advair and Albuterol did not meet the requirement for a 100 percent evaluation for use of systemic high dose corticosteroids, but that those medications were more properly characterized as inhalational inflammatory medication. The Court found that drug classifications of this type require independent medical expertise that the Board does not ordinarily posses. Although the Board believes that the composition and nature of these drugs does not require such medical expertise, the Board, based on the Court order, has no choice but to vacate and remand this decision in order that medical expertise may be consulted as to this issue, as well as the overall severity of his disability. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the names and addresses of any health care providers who have recently treated him for sleep apnea with restrictive lung disease. After receiving a response, and obtaining any required releases, please associate all relevant records with the Veteran's claims file, and review all evidence of record, including those medical records submitted by the Veteran in May 2009. 2. Regardless of whether the Veteran responds, obtain and associate with the record all relevant VA treatment records since May 2009. 3. After the above development has been completed, and the relevant records associated with the claims file, please schedule the Veteran for a VA examination for his sleep apnea with restrictive lung disease. A copy of the notice to report for this examination must be associated with the claims file. All relevant tests should be conducted, including pulmonary function testing. The examiner should specifically note what medications the Veteran has taken during the period this appeal has been pending, and note whether any of these medications, including those inhaled, would be considered systemic high dose corticosteroids, or not. A discussion of the complete rationale for all opinions expressed, to include discussion of relevant evidence, should be included in the examination report. 4. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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). 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). _________________________________________________ MICHAEL LANE 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).