Citation Nr: 1330583 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-46 457 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an increased rating for residuals of a right foot injury, currently rated as 10 percent disabling. 3. Entitlement to an increased rating for residuals of a laser burn scar of the left calf, currently rated as 10 percent disabling. 4. Entitlement to service connection for a left foot injury. 5. Entitlement to service connection for bilateral carpal tunnel syndrome. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a gastrointestinal disability claimed as irritable bowel syndrome and hiatal hernia. 8. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran later testified at a videoconference hearing before the Board in November 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claims of entitlement to an increased rating for a right foot disability and entitlement to service connection for obstructive sleep apnea can be reached. With regard to the claim for an increased rating for residuals of a right foot injury, at his November 2012 hearing, the Veteran testified that his service-connected right foot disability had worsened in severity since the last examination of record. The Veteran was last afforded a VA examination to assess his service-connected disability in November 2009. He indicated that he continues to seek treatment for his disability at VA. Additionally, the Board notes that at a January 2012 VA examination for purposes of evaluating a claimed left foot disability, the Veteran was noted to have mild hallux valgus of the right foot. In order to properly adjudicate the claim, a VA examination should be obtained to determine the current severity of the right foot disability. Where there is evidence that a service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence that addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). With regard to the claim for service connection for obstructive sleep apnea, the Veteran testified that he began noticing trouble with sleep during his time in service but never sought treatment for any symptoms of sleep apnea. He indicated that he slept fitfully, awakened, and was then unable to get back to sleep. His spouse testified that she observed the Veteran had respiratory difficulties while he was sleeping when she married him in the mid-1990s. The Veteran testified that he continued to have the same types of problems with sleep apnea since service until he was diagnosed and treated for this problem in 2000 while serving in the Reserves. He indicated that he used a CPAP machine to treat his sleep apnea. Post-service VA outpatient treatment reports reflect a diagnosis of obstructive sleep apnea in August 2004. The Veteran was noted to have been issued a CPAP machine five months prior. In initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159(c) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been afforded a VA examination to determine the etiology of his claimed obstructive sleep apnea. A VA examination should be obtained in order to ascertain the etiology of the claimed obstructive sleep apnea. Associated with the claims file is a favorable decision from the Social Security Administration (SSA) dated in March 2005. A disability determination and transmittal from the SSA indicates that the Veteran had a primary diagnosis of degenerative joint disease and a secondary diagnosis of carpal tunnel syndrome. Treatment records associated with this favorable decision are of record. However, the RO requested additional SSA records in requests dated in July 2011 and August 2011. In a response from the SSA faxed to the RO in August 2011, the SSA indicated that the records were mailed to the VARO in Milwaukee, Wisconsin in July 2011. However, it does not appear that any additional SSA records were included in the claims file. Any additional records received by the SSA should be included in the claims file. If such records are not available from the RO, a request for any additional records should be made to the SSA. VA outpatient treatment reports dated through September 2012 are associated with the claims file. The Veteran testified that he receives monthly treatment at VA. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claims, an attempt to obtain such records should be made. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). With regard to the remaining claims, in May 2007, the Veteran's representative expressed disagreement with a September 2006 rating decision which denied claims of entitlement to an increased rating for residuals of a laser burn scar of the left calf, entitlement to service connection for a left foot injury, entitlement to service connection for bilateral carpal tunnel syndrome, and applications to reopen claims of entitlement to service connection for a psychiatric disorder, a gastrointestinal disability claimed as irritable bowel syndrome and hiatal hernia, and a right knee disability. However, the RO did not issue a statement of the case with regard to these issues. Where a notice of disagreement has been filed with regard to issues, and a statement of the case has not been issued, the appropriate Board action is to remand the issues for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Issue a statement of the case which addresses the issues of entitlement to an increased rating for a residuals of a laser burn scar of the left calf, entitlement to service connection for a left foot injury, entitlement to service connection for bilateral carpal tunnel syndrome, whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, whether new and material evidence has been received to reopen a claim of entitlement to service connection for a gastrointestinal disability claimed as irritable bowel syndrome and hiatal hernia, and whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. 2. Obtain any available VA outpatient treatment reports dated since September 2012 and associate them with the claims file. If the Veteran identifies any other relevant medical records, those records should also be obtained. 3. Contact the VARO in Milwaukee, Wisconsin and determine whether any additional records received from the SSA in July or August 2011 are available. If the records are unavailable from the VARO, another request should then be made to the SSA for any disability determinations and medical records obtained by the SSA subsequent to the March 2005 favorable SSA disability benefits determination. Any negative responses should be documented in the claims file. 4. Schedule the Veteran for a VA orthopedic examination, by an appropriate specialist, to determine the current severity of his service-connected right foot disability. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history, including, in particular, any records of recent treatment and the examiner should note that review in the examination report. The examination should include any diagnostic testing or evaluation, including X-ray studies, deemed necessary. The examiner should address the following: (i) Discuss the January 2012 VA examination report, and explain what diagnosis(es) is/are appropriate currently for the Veteran's right foot disability. If hallux valgus is present, please state the likelihood that the disorder is related to the Veteran's right foot injury in service. If right foot hallux valgus is not currently present, please state when the disorder resolved. (ii) The examination report must include range of motion findings. The examiner must identify and describe any and all current right foot symptomatology, including whether there is pain, swelling, tenderness, stiffness, weakness, fatigability, deformity, any abnormal weight-bearing, pronation, limited motion, and numbness. The examiner should describe whether there is functional loss in the right foot associated with the foot disability due to more or less movement than normal, weakened movement, excess fatigability, incoordination, any pain on movement, swelling, deformity or atrophy of disuse, pain on pressure or manipulation, and muscle spasm. The examiner should specify any additional limitation of motion due to any of these factors, including during prolonged, repetitive use of the right foot, or when, for example, the Veteran's symptoms are most problematic ("flare-ups"). If there is no objective evidence of these symptoms, the examiner should so state. Further, the examiner should note the movements of the right foot and state whether any muscles of the foot are affected. (iii) Finally, the examiner should indicate whether the Veteran's right foot disability(ies) is moderate, moderately severe, or severe in nature. 5. Schedule the Veteran for a VA examination with the appropriate specialist to determine the etiology of obstructive sleep apnea. A complete rationale for any opinion must be provided. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history, including, in particular, any records of treatment and the examiner should note that review in the examination report. Any necessary tests or studies should be conducted. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was caused or aggravated (increased in severity beyond the natural course of the condition) by the Veteran's period of active duty service. The examiner should consider the Veteran's report of frequent awakenings during service and the report of symptoms of obstructive sleep apnea since service. 6. Then, readjudicate the claims of entitlement to an increased rating for a right foot disability and entitlement to service connection for obstructive sleep apnea. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 J. Skaltsounis 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) (2013).