Citation Nr: 1331183	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  10-07 472	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Waco, Texas


THE ISSUES

1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active service from July 1967 to September 1991.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the RO. In that decision, the RO, in pertinent part, granted service connection for PTSD and assigned a 30 percent rating effective from July 31, 2008. The RO, in pertinent part, also denied the Veteran's claim of entitlement to service connection for a sleep disorder (claimed as sleep apnea). 

The Veteran testified before a Decision Review Officer (DRO) in a hearing at the RO in September 2010; a transcript of the hearing is associated with the claims file.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal herein decided. 

The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

PTSD has most nearly approximated occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships.


CONCLUSION OF LAW

The criteria for a 50 percent rating for the PTSD are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121.

In this case, in an August 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, as this appeal stems from the initial grant of service connection for PTSD, the notice letter did not contain an explanation of the general rating criteria relevant to his PTSD.

The February 2010 Statement of the Case (SOC) set forth applicable criteria for ratings for PTSD. After issuance of the October 2009 SOC, and opportunity for the Veteran to respond, the November 2010 Supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the VA treatment records and examination report and private treatment records.    

The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Laws and Regulations

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999).   Here the disability has not significantly changed and a uniform evaluation is warranted.

Here, the disability has not significantly changed and a uniform evaluation is warranted.

The initial rating for the Veteran's PTSD has been assigned pursuant to Diagnostic Code 9411. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130.

Under the formula, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  

A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." 

GAF scores between 41 and 50 reflect serious symptoms, (that is, suicidal ideation, severe obsessional rituals, frequent shoplifting), or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores between 51 and 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupation or school functioning (e.g., few friends, conflicts with peers or co-workers).

There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a).  

Analysis

In this case, the Board concludes that the symptoms of the Veteran's PTSD have most nearly approximated occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships.

A September 2008 report of VA examination reflects the Veteran's complaint of symptoms such as daily intrusive thoughts of Vietnam and occasional homicidal ideation. He denied ever having any psychosis. He indicated that he had lots of memories of casualties from Vietnam. Certain songs and smells reminded him of Vietnam. He reported that he has anger control problems. He woke up in the middle of the night with thoughts of Vietnam on his mind and had restless sleep approximately two to three times per week. He has choked his wife in the past and stated that noises wake him from his sleep. He also talked in his sleep. He had anger outbursts where he would break things and scream and yell or he would pout and withdraw. Additionally, he engaged in road range and reported, "little things bother me a lot." 

He had no communication with his parents for 25 years. He had a brother and a sister. He stated that he always felt like an outcast by his family. He reported that there was no family history of mental illness, alcohol or drugs or crime.

He reported that he had never missed work due to mental problems. He stated that his longest period of employment was 12 years when he worked for an employer doing heating and air conditioning. He now worked at the VA and stated that people got upset with him and that he "gets involved at times."

He reported that he was short tempered and argumentative with his wife. He isolated himself from others and did not like having visitors. He has three children and indicated only one son "turned out well." He had a distant relationship with his daughter and reported that she struggles financially. Additionally, he reported that he was estranged from his entire family. He did indicate that his wife's mother was gravely ill which was upsetting to him.

He was able to engage in a normal range and variety of activities of daily living without interruption of his typical daily routine. He enjoyed leisure activities such as deer hunting with his son and wife. He lived on 40 acres of land, owned 10 cows and enjoyed spending time in that regard. He had a bass boat and fishing rig but did not go fishing because he was simply poorly motivated.

Mental status examination showed he was sincere and polite. Thought processes were logical, coherent and relevant. He was articulate, verbal, well-dressed, and well-groomed. He was cooperative and exhibited good social skills. He had a trim body build. He seemed intelligent and his speech was well understood. He was well oriented to time, place, person and situation and his affect was spontaneous. His reasoning and fund of general information were good. He exhibited no psychomotor slowing or agitation. Verbal comprehension and concentration were good; however, he complained of poor short term memory, stating that he loses his place in conversation, that he tended to daydream and that he had to make lists in order to complete tasks. His sensorium was clear and he denied having any head trauma, seizure or stroke.

Review of psychological symptoms resulted in the endorsement of anxiety, panic attacks, depression, insomnia and crying spells. The Veteran indicated anhedonia as well as nightmares and racing thoughts and anger control problems. He had homicidal ideation at times but did not have psychotic symptoms and indicated that he had never been suicidal. His problems behaviors had to do with his anger, irritability and difficulty in relationships. He was difficult to get along with and was tolerated because he was efficient in doing his job. However, he had a long history of anger and irritation on the job. He was easily angered and irritated and impatient with others. He pouts, isolates from others and has very few social companions.

The examiner assigned a GAF score in the range of 50-55 and found that the Veteran had significant occupational and social impairment on a chronic basis. The examiner concluded that the Veteran had difficulty getting along with others, was short-tempered and impatient and had very few strong social relationships. Despite these drawbacks, he was a good worker and had been a career noncommissioned officer at a very high level.

An August 2009 VA psychology consult record reflects the Veteran's report that he was angry, agitated, argumentative, irritable, and self critical. He rated his current level of depression a 4.5/10 (on a scale of 1-10). He was alert and oriented and his thought processes were logical and goal-oriented. There was no evidence of thought disorder or psychotic symptoms. He reported that he had occasional passive suicidal ideation. He was moderately depressed and reported he had poor social support. Reality testing was good but impulse control was mildly impaired. He reported low frustration tolerance.  He had been married to his wife for 40 years and had three grown children, two of whom he maintained contact with.

The examiner indicated that testing showed that the Veteran was experiencing a moderate to severe level of depressive symptoms associated with his PTSD. A GAF score of 59 was assigned.

A June 2010 VA psychology note reflects the Veteran's complaint of current PTSD symptoms including nightmares of being in Vietnam, problems with certain noises, hypervigilance, occasional exaggerated startle responses and problems with anger (although psychoactive medications help).  Additionally, he reported experiencing frequent intrusive thoughts of combat and complained that his current PTSD symptoms adversely affected his life. He complained of interrupted sleep, stating that he had nightmares of experiences in Vietnam.

Mental status examination showed that he was neatly dressed and well-groomed. Speech was normal, logical and coherent. His mood was neutral and his affect congruent with his mood. His thought processes were goal directed and thought content was devoid of paranoia, obsession, grandiosity, magical thinking, perseveration, depersonalization or active delusional system. He denied auditory or visual hallucinations but did experience flashbacks and intrusive thoughts in addition to nightmares. Judgment, insight and impulse control were good. There was no disturbance of cognitive functioning. He denied suicidal or homicidal ideation. He was assigned a GAF score of 55.

A November 2010 report of VA examination reflects the Veteran's complaint of PTSD symptoms such as recurrent intrusive images or thoughts, recurrent distressing dreams, avoidant behavior, sleep disturbance, irritability or outbursts of anger, difficulty concentrating and hypervigilance. He worked at the VA doing heating and air conditioning work. He had been married to his wife for 41 years and described his wife as his "rock" and source of great support. He participated in leisurely activities including deer hunting and fishing.

Mental status examination showed no impairment of thought process or communication. He denied having delusions or hallucinations. He had appropriate eye contact and was cooperative. He denied having suicidal or homicidal ideation, intent or plan. He was oriented and able to maintain personal hygiene and other basic activities of daily living. His memory was described as average. He denied obsessive or ritualistic behavior that interfered with routine activities. Speech was with normal limits and the Veteran denied having panic attacks. No significant impairment of impulse control was noted 

The examiner assigned a GAF score in the range of 50-55 and found that the Veteran's PTSD symptomatology appeared to be relatively stable compared to the 2008 VA examination. The examiner concluded that it was less likely than not that the Veteran was more impaired than he was in 2008 and found that the Veteran's PTSD symptoms were productive of occupational and social impairment with occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks due to signs and symptoms, but generally satisfactory functioning (routine behavior, self-care and conversation normal). Additionally noted, the PTSD symptoms required continuous medication. 

Based on the above, the evidence reasonably demonstrates that the Veteran's PTSD has been productive of symptoms that result in occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. The Veteran's testimony offered at the September 2010 RO hearing and the evidence demonstrates that the Veteran has moderate impairment in social areas of his functioning. He is shown to have few leisure activities and is not particularly social, preferring to avoid social gatherings. Additionally, he demonstrated impairment in short-term memory and disturbance of motivation and mood.

While the Board is aware that the report of VA examinations could be viewed as indicative of PTSD of less severity, the Veteran's PTSD is shown to have caused impairment in social function. The Board has also considered the lay pleading and testimony and has found the Veteran to be credible.  This taken with the totality of the other evidence of record persuades the Board to conclude that the Veteran's PTSD has more nearly approximated occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships.

In finding that a 50 percent rating is warranted, the Board has not required that an exhaustive list of symptoms be met. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  Rather, the Board finds the 50 percent rating is indicative of the Veteran's overall disability picture, reflecting the effects of his PTSD on social and occupational impairment.  As the U.S. Court of Appeals for the Federal Circuit recently explained, evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013).  The symptoms listed in DC 9411 are not exhaustive, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.  Mauerhan, 16 Vet.App. at 442.  In the context of determining whether a 70% disability evaluation is warranted, the DC requires "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation ... requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.  Vazquez-Claudio, 713 F.3d at 117-18; see 38 C.F.R. § 4.130, DC 9411.  We also note that, because many symptoms are enumerated within the various disability ratings and it is the degree of impairment as a result of each symptom that differs within each rating, it is appropriate for the Board to discuss these enumerated symptoms as the level of impairment caused by each symptom accounts for the difference in disability rating.  

The evidence indicates that the Veteran's PTSD had not caused occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships, particularly given the fact that the Veteran has not demonstrated more significant vocational impairment, and, has few of the symptoms listed in the criteria for a 70 percent rating.  Even when we accept his report of irritability or impaired impulse control, neither the lay nor medical evidence suggests periods of violence during the appeal period.  While the record also establishes that he has had thoughts of homicide and or suicide, the record does not establish a plan or any intent.  Here, we find that he is not a danger to self or others. Thus, the Board finds that a 70 percent rating or higher is not warranted. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed.Cir. 2013).  In particular, the evidence establishes that he retains good relationships with his wife and some of his children.  He has remained employed and has not established that he has lost much time due to the disability.  Here, he does not demonstrate the type of manifestations expected with a 70 percent disability and he certainly does not have deficiencies in most areas.

The above determinations are based on application of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that at no point has the disability been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321.

Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptoms and effects of the Veteran's PTSD are fully contemplated by the applicable rating criteria. The Board's analysis above reflects that the symptoms, effects, and overall disability picture from the Veteran's PTSD is contemplated by the 50 percent rating, which takes account of both the individual symptoms and the overall impairment caused by the chronic PTSD. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the above evidence reflects that the effects of the PTSD on the Veteran's employment did not constitute marked interference with employment, i.e., beyond that contemplated by the assigned 30 percent rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Moreover, there is no evidence of frequent hospitalization, or indication that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for chronic adjustment disorder is not warranted. 38 C.F.R. § 3.321(b)(1).

For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's PTSD has most nearly approximated occupational and social impairment of a degree warranting a 50 percent rating since the July 31, 2008 effective date for the award of service connection. 38 C.F.R. § 4.7. The benefit-of-the-doubt doctrine is not for application, and a rating of 50 percent, but no higher, is therefore warranted for the Veteran's PTSD. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 4.3; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).
 

ORDER

Entitlement to a 50 percent rating for PTSD is granted, subject to controlling regulations governing the payment of monetary awards.




REMAND

The Veteran asserts that his sleep apnea is secondary to his PTSD. The Board notes that under 38 C.F.R. § 3.310(a) (2012), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006) (see 38 C.F.R. § 3.310(b)). 

In this case, the Board finds that the evidence of record fails to adequately address the Veteran's contention of secondary service connection, i.e., whether the claimed sleep apnea was caused or aggravated by the service-connected PTSD. The Board finds that the psychiatrist did not offer an adequate rationale for his conclusion in the November 2010 VA examination report that the Veteran's "obstructive sleep apnea is less likely than not to be related to his PTSD. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"); Miller v. West, 11 Vet.App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.").  

Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Under these circumstances, the Board finds additional VA examination is necessary to address whether the claimed sleep apnea, was caused or aggravated by his service-connected PTSD.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to evaluate sleep apnea. The claims file should be made available to the examiner for review. All indicated tests and studies should be performed and clinical findings should be reported in detail. After a thorough review of the evidence, the examiner should provide an opinion with supporting rationale as to whether it is at least as likely as not the service-connected PTSD caused or aggravated the Veteran's sleep apnea?  If aggravation of the sleep apnea by the service-connected PTSD is shown, the examiner should objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred.  

The examination report must include complete rationale for all opinions and conclusions reached.

2. After completion of the above development, the Veteran's claim of entitlement to service connection for sleep apnea, claimed as secondary to the service-connected PTSD should be readjudicated. If the determination remains adverse to him, he should be furnished with a Supplemental Statement of the Case.

Thereafter, as indicated, the case should be returned to the Board for the purpose of appellate disposition.

The Veteran 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).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs