Citation Nr: 1329108 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 08-39 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for a respiratory disability. 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty with the United States Navy from January 1964 to January 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Montgomery, Alabama, Regional Office (RO) of the United States Department of Veterans Affairs (VA). On his December 2008 VA Form 9, the Veteran withdrew his request for a Travel Board hearing. See 38 C.F.R. § 20.704(e) (2012). The Veteran did not file a substantive appeal with regard to the issue of entitlement to service connection for sleep apnea. He excluded this issue from the VA Form 9 that he filed in December 2008. See 38 C.F.R. § 20.302(b) (2012). However, as the RO continued the appeal on this issue in an October 2011 supplemental statement of the case, the Board has assumed jurisdiction over that claim. Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009). The issues have been characterized as indicated on the title page to comport with the evidence of record. In July 2012, the Board remanded the case to the RO for additional development. The development is incomplete. 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 Board's July 2012 remand, the RO was directed to afford the Veteran VA examinations for the purpose of obtaining VA medical opinions with respect to the service connection claims on appeal. The remand instructed that the examiner was to provide an opinion as to whether is it at least as likely as not (a 50 percent or greater probability) that any of the claimed disorders on appeal are related to service, and if not, whether it is at least as likely as not (a 50 percent or greater probability) that any relevant disorder diagnosed was caused or aggravated by service-connected disability. With respect to a respiratory disorder and sleep apnea, the August 2012 VA examiner concluded that the Veteran does not have asthma, and that his symptoms of difficulty with breathing are more suggestive of airway hyperactivity. Examination was noted to be essentially normal, and results of pulmonary function testing (PFT) were reported to be consistent with aging, not with a chronic respiratory condition. The impression on private x-ray examination of the chest in February 2003 was patchy volume loss and consolidation of the right lung noted to possibly be secondary to pneumonia, atelectasis, scarring, etc, or secondary service connection. The August 2012 opinion does not address the Veteran's lay assertions, to include with respect to Agent Orange exposure, or secondary service connection. The opinion is inadequate. In addition, the report of examination notes no diagnosis pertaining to a skin disorder and no opinion was provided as to whether there is a relationship between the Veteran's intermittent skin rashes indicated in the record and his service-connected prostate cancer (with residuals of urine leakage). Although the examiner concluded that the Veteran's symptoms do not meet the criteria for a diagnosis of sleep apnea, it was noted that a sleep study had not been accomplished but that one was scheduled. A September 2012 VA treatment record notes that a sleep study had been ordered. The RO must obtain updated treatment records pertaining to the Veteran. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records, to include in association with any sleep study. 2. Schedule the Veteran for a VA respiratory/sleep apnea examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed respiratory disorder or sleep apnea is related to service. If the examiner determines that any diagnosed respiratory disorder or sleep apnea was not incurred in service, the examiner is to offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed respiratory disorder or sleep apnea was caused or aggravated by the Veteran's service-connected coronary artery disease. In rendering the opinion, the examiner is to address the Veteran's lay assertions, to include with respect to Agent Orange exposure, other diagnoses of record, and the February 2013 private chest x-ray examination report. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for a VA skin examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed skin disorder are related to service or aggravated by service-connected prostate cancer (with residuals of urine leakage). The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Then, readjudicate the appeal. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case 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 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). _________________________________________________ RONALD W. SCHOLZ 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).