Citation Nr: 1330625 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-16 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an evaluation in excess of 50 percent for sleep apnea and asthma, after December 22, 2005. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1977 to August 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In February 2012, the Board denied the Veteran's claim. The Veteran appealed the denial to The United States Court of Appeals for Veterans Claims (Court). In an Order, dated in November 2011, the Court granted a Joint Motion to Remand of the parties, the VA Secretary and the Veteran, and remanded the case to the Board for readjudication consistent with the Motion. 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 Veteran is seeking a higher rating for his service connected asthma and sleep apnea rated as 50 percent disabling. Obstructive sleep apnea is rated under 38 C.F.R. § 4.97, Diagnostic Code 6847. Sleep apnea which requires use of a breach assistance device such as a continuous airway pressure (CPAP) machine warrants a 50 percent disability rating. A 100 percent disability rating is warranted for sleep apnea which results in chronic respiratory failure with carbon dioxide retention or cor pulmonale; or, requires tracheostomy. See 38 C.F.R. § 4.97, DC 6847. Bronchial asthma is evaluated, in part, based upon the results of pulmonary function tests (PFTs), specified in terms of forced expiratory volume in one second (FEV-1) and forced vital capacity (FVC). 38 C.F.R. §§ 4.96, 4.97. When evaluating asthma based on PFTs, the post-bronchodilator results are used unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). In such cases the pre-bronchodilator results are to be used. Id. A 100 percent rating is assigned if FEV-1 is less than 40 percent predicted, or; FEV-1/FVC is less than 40 percent because of bronchial asthma, or; there is more than one attack of bronchial asthma per week with episodes of respiratory failure, or; if bronchial asthma requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97 Diagnostic Code 6602. A 60 percent evaluation is assigned if FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent because of bronchial asthma, or; there are at least monthly visits to a physician for required care of exacerbations of asthma, or; there are intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids for asthma. Id. Unfortunately, the Board is unable to review the appeal for a higher rating prior to an examination to determine the current manifestations of the disorder. The record shows that the Veteran was last examined for disability evaluation in September 2007, some five years ago. The Veteran should be afforded a current VA examination in order to assess the severity of his obstructive sleep apnea and asthma. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for a VA examination to assess the current severity of his sleep apnea and asthma. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner(s) in conjunction with the examination(s). If the examiner(s) does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. A rationale must be articulated for all opinions provided, with citation to relevant medical findings. A pulmonary function test should be performed. With regard to the Veteran's sleep apnea, the examiner should state whether there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or whether it has required a tracheostomy. The examiner must comment on the Veteran's prior treatment including his prior surgery in November 2005. With regard to his asthma, the examiner should state whether there are at least monthly visits to physicians for required care during exacerbations, or intermittent use of systemic corticosteroids. The examiner should specifically address whether the CPAP and bronchodilator medication can be used together. The examiner must specifically comment on the impact that the Veteran's service-connected disorder has on his employability. In doing so, the examiner must also elicit from the Veteran and the record for clinical purposes, a full work and educational history. 3. The RO must notify the Veteran that it is his responsibility to report for the examination(s) and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).