Citation Nr: 1329820 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-18 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as a result of exposure to asbestos and as secondary to service-connected disabilities. 2. Entitlement to a disability rating in excess of 60 percent for intervertebral disc syndrome of the lumbar spine, status post laminectomy L3-L4 and diskectomy L3-L4. 3. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease and degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1976 and from October 1988 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 and February 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for sleep apnea has been raised by the Veteran (see May 2009 statement), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and the claim is hereby referred to the AOJ for appropriate action. In June 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. 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 The Board finds that the appeal must be remanded for additional development. As an initial matter, the Veteran testified at the June 2013 hearing that he was a participant in a vocational rehabilitation program. An April 2010 VA treatment reflected that he completed a vocational rehabilitation computer course and that his counselor provided written documentation that an ergonomic chair should be prescribed. As the VA vocational rehabilitation file may contain potentially relevant information to both the Veteran's increased rating claims and his service connection claim for sleep apnea, these records should be obtained on remand. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam) (stating that documents, such as medical records generated by VA, are considered constructively part of the record before the Board). With respect to the claim for service connection for sleep apnea, the notice letters provided to the Veteran contained information of how to substantiate a claim for service connection on a direct basis. However, the Veteran has also raised a different theory of entitlement, that of service connection secondary to his service-connected disabilities of the lumbar spine, bowel incontinence, and erectile dysfunction. See May 2010 statement. Therefore, he needs to be provided with a proper VCAA notice letter that addresses how to establish service connection on a secondary basis. See generally Kent v. Nicholson, 20 Vet. App. 1, 12 (2006) (observing that incomplete information can render a VCAA notice letter inadequate). Additionally, the Veteran has alleged continuity of symptoms of sleep apnea since his lumbar spine surgery in 1998. Because the Veteran is service-connected for a lumbar spine disability, the Board finds that the evidence is sufficient to indicate that the sleep apnea "may" be associated with service under the low threshold set forth by McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 C.F.R. § 3.159(c)(4). Accordingly, an opinion as to secondary service connection should be obtained on remand. With regard to the Veteran's cervical and lumbar spine disabilities, the Veteran testified in June 2013 that he experienced neurological complaints related to each of these disorders. See Hearing Transcript at p. 6 (noting complaints of radiating pain and numbness, possibly due to the sciatic nerve, from his waist to his left toes) and p. 10 (noting complaints of pain running down the side of neck, shoulder, and to the hands). This information indicates either a worsening of disability since the last VA examination provided in 2012 or suggests that a more comprehensive neurological examination is necessary so that all of the Veteran's spinal manifestations can be considered in assessing the rating to be assigned. See 38 C.F.R. § 4.71a, Note (1) of the General Rating Formula for Disease and Injuries of the Spine (requiring associated objective neurological abnormalities be separately evaluated under the appropriate Diagnostic Code). Finally, to the extent that the Veteran may have received any additional VA treatment for sleep apnea or his lumbar and cervical spine disabilities, recent treatment records should also be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a VCAA notice letter that advises the Veteran of the information and evidence needed to substantiate his claim for service connection for sleep apnea as secondary to his service-connected disabilities. Such letter shall also request that the Veteran identify, and if necessary provide a release for, any relevant VA or private treatment records that have not already been obtained and associated with the claims file. 2. Obtain and associate with the claims file: (a) VA treatment records relevant to the remanded claims from April 2010 to the present; and (b) Vocational rehabilitation documents. 3. After accomplishing the development requested in steps (1) and (2) above, the RO/AMC should obtain a VA examination regarding the etiology of the Veteran's claimed sleep apnea. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner in conjunction with the examination. The examiner is requested to offer an opinion as to whether is at least as likely as not (i.e., at least a probability of 50 percent or greater) that the disorder is caused by or aggravated by his service-connected disabilities, including in particular his lumbar spine disability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Schedule the Veteran for orthopedic and neurologic examinations to assess the nature and severity of his lumbar and cervical spine disabilities and any related neurological manifestations. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to the following: (a) Whether the Veteran's complaints of radiating pain and numbness from the waist to the left toes are manifestations of his service-connected lumbar spine disorder. If so, describe the nerve(s) affected and level of impairment. (b) Whether the Veteran's complaints of radiating pain from the neck to the hands are manifestations of his service-connected cervical spine disorder. If so, describe the nerve(s) affected and level of impairment. (c) In addition to conducting a physical examination of the spine, the VA examiner is directed to discuss the presence or absence of flare-ups of pain, weakness, excessive fatigability with use, incoordination, painful motion and pain with use, and offer an opinion as to whether these factors produce any additional functional impairment. To the extent possible, the examiner is directed express that degree of functional impairment in terms of additional degrees of limitation of motion. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues of entitlement to service connection for sleep apnea, to include as a result of exposure to asbestos and as secondary to service-connected disabilities; entitlement to a disability rating in excess of 60 percent for intervertebral disc syndrome of the lumbar spine, status post laminectomy L3-L4 and diskectomy L3-L4; and entitlement to a disability rating in excess of 40 percent for degenerative joint disease and degenerative disc disease of the cervical spine. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ WAYNE M. BRAEUER 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).