Citation Nr: 1332367 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-39 695 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to a compensable disability rating for deviated nasal septum and rhinitis. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for migraine headaches; and if so, whether the criteria for service connection are met. 4. Entitlement to service connection for sleep apnea, to include as secondary to service-connected deviated nasal septum and rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1972. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision that denied service connection for PTSD; denied a compensable disability rating for service-connected deviated nasal septum and rhinitis; and declined to reopen a claim for service connection for migraine headaches on the basis that new and material evidence had not been received. The Veteran timely appealed. These matters also came to the Board on appeal from an October 2008 rating decision that denied service connection for sleep apnea. The Veteran timely appealed. In March 2011, the Veteran and his wife testified during a hearing before a former Veterans Law Judge. In June 2011, the Board remanded the matters for additional development. The Board is satisfied there was substantial compliance with its remand orders for the claims decided below. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2013, the Board duly notified the Veteran that the Board no longer employed the Veterans Law Judge who conducted the March 2011 Board hearing and that he had the right to another Board hearing. Later that same month, the Veteran indicated that he did not want an additional hearing. The Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran continues to work. While the Veteran has indicated that he is unable to perform some work activities due to his service-connected disabilities, he has not alleged that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. The matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The reopened claim for service connection for migraine headaches, and the claim for service connection for sleep apnea are addressed in the REMAND portion of the decision below; and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran in May 2013, that a withdrawal of the appeal for service connection for PTSD is requested. 2. Throughout the rating period, the Veteran's deviated nasal septum and rhinitis have been manifested by subjective complaints of interference with breathing, no nasal polyps, and with less than 50 percent obstruction of each nostril; neither incapacitating episodes requiring prolonged antibiotics treatment, nor three or more non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting have been demonstrated. 3. In a decision promulgated in February 2003, the Board denied the Veteran's claim for chronic headaches. The Veteran did not appeal this decision. 4. Evidence associated with the claims file since the February 2003 denial, when considered by itself or in connection with evidence previously assembled, creates a reasonable possibility of substantiating a claim for service connection for migraine headaches. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for PTSD have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for a compensable disability rating for deviated nasal septum and rhinitis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.97, Diagnostic Codes 6502, 6510 through 6514, 6522 (2012). 3. The February 2003 Board decision, denying service connection for chronic headaches, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 4. The evidence received since the February 2003 Board decision is new and material, and the claim for service connection for migraine headaches is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Through August 2007 and June 2011 letters, the RO and VA's Appeals Management Center (AMC) notified the Veteran of elements of an increased rating claim, and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claims. In each letter, the RO and AMC specifically notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims decided on appeal, reports of which are of record and are adequate for rating purposes. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the former Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked, or was outstanding that might substantiate the claims. The case was thereafter remanded for additional development, including examinations. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2); and no prejudice has been identified in the conduct of the Board hearing. Moreover, in view of the Board's favorable decision in this appeal for reopening the claim for service connection for migraine headaches, further assistance is unnecessary to aid the Veteran in substantiating the claim to reopen. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Service Connection Claim for PTSD Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew the appeal for service connection for PTSD in writing, via correspondence submitted in May 2013. There remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal for service connection for PTSD, and the claim is dismissed. III. Evaluation of Deviated Nasal Septum and Rhinitis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is also competent to report symptoms of nasal obstruction and congestion. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Service connection has been established for deviated nasal septum and rhinitis. The RO has evaluated the disability as 0 percent (noncompensable) disabling under Diagnostic Code 6502, pertaining to deviation of the nasal septum. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Pursuant to Diagnostic Code 6502, a 10 percent rating is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502 (2012). Alternatively, pursuant to Diagnostic Code 6522, a 10 percent disability rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. A 30 percent disability rating is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2012). Moreover, under the General Rating Formula for sinusitis (Diagnostic Codes 6510 through 6514), a 10 percent rating requires one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating requires osteomyelitis following radical surgery or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514 (2012). A note following Diagnostic Codes 6510 through 6514 defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician. During a December 2007 VA examination, the Veteran reported that he sustained a nasal bone fracture in active service when a broom he was reaching for fell and hit his nose; and that he underwent surgical repair of the nasal bone fracture in 1969. Since then, he has complained of nasal obstructive symptoms with bouts of headaches. He reported a history of sinusitis, with non-incapacitating episodes twice per year and lasting for one or two days. Current rhinitis symptoms included nasal congestion and excess nasal mucous. Current sinus symptoms included headaches occurring one to six times per week. The Veteran reported frequent difficulty breathing. Records also show that the Veteran had been diagnosed with muscle tension headaches. Examination in December 2007 revealed no evidence of sinus disease. There were signs of nasal obstruction: the left side was 30 percent obstructed, and the right side was 0 percent obstructed. No nasal polyps were present. The examiner noted that the septal was deviated due to trauma. There was no evidence of permanent hypertrophy of turbinates from bacterial rhinitis, and no rhinoscleroma present. Nor was there tissue loss, scarring, or deformity of the nose. The examiner found no evidence of Wegener's granulomatosis or granulomatous infection. No facial disfigurement was noted. X-rays of the nasal bones revealed mild nasal septal deviation to the left. X-rays of the sinuses revealed mild increased opacity at inferior aspects of maxillary sinuses, which may represent mucoperiosteal thickening. Private treatment records, dated in December 2009, show a history of complaints of nasal stuffiness, treated with a nasal spray with good relief. The report of a January 2010 VA examination reflects complaints of nasal obstruction, which made it "hard to breath" especially at night; and occasional symptoms of runny nose or congestion, not requiring antibiotics. Examination revealed no evidence of sinus disease; and revealed 30 percent obstruction of the left nasal, and no obstruction of the right nasal. Mild nasal septal deviation to the left was noted. Although the claims file was not provided to the examiner, the Board does not find that such makes the examination inadequate, as the purpose of the examination was to report the clinical findings pertaining to the service-connected disability, which was accomplished by the examiner. In March 2011, the Veteran testified that he had problems breathing out of his nose while sleeping, which was irritating; and that at times he also had nasal drainage. He testified that he even had blockage during the day while working, and that he could not breathe out of one side of his nose. In this case, the Veteran's service-connected disability has been manifested primarily by some deviation of the nasal septum, but with less than 50 percent obstruction. There have been no reports of nasal polyps at any time. Throughout the rating period, the evidence reveals no more than one-to-two non-incapacitating episodes per year of sinusitis. The Veteran's reports of symptoms and non-incapacitating episodes have been considered, and are competent and probative; however, the evidence as a whole shows that the criteria for a compensable evaluation are not met. The doctrine of reasonable doubt has been considered, but in this case a clear preponderance of the evidence weighs against the claim. Hence, the benefit-of-doubt rule does not apply. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluation assigned for the Veteran's service-connected deviated nasal septum and rhinitis is adequate in this case. The Veteran's deviated nasal septum and rhinitis, and the severity thereof, which are manifested by symptoms of nasal obstruction are contemplated by the schedular criteria. Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Based on the foregoing, the Board finds that the overall evidence does not reveal that a compensable disability rating for deviated nasal septum and rhinitis is warranted under Diagnostic Code 6502 (deviated nasal septum) or under Diagnostic Code 6522 (allergic rhinitis), or under the General Rating Formula for sinusitis (Diagnostic Codes 6510 through 6514). There is no evidence of disfigurement of the head, face, or neck. Nor have there been reports of significant functional loss of parts affected. The Veteran provided statements indicating that the symptomatology associated with his deviated nasal septum and rhinitis had worsened. However, the objective clinical findings consistently fail to show that his disability meets the criteria for a compensable evaluation, and the Board concludes that those findings outweigh his lay assertions regarding severity. IV. Petition to Reopen Claim for Service Connection for Migraine Headaches A decision promulgated by the Board in February 2003 denied service connection for chronic headaches on the basis that a preponderance of the evidence was against a finding that the Veteran's headaches were associated with a headache disorder incurred during active service. The Veteran did not appeal, and the decision is final. 38 U.S.C.A. § 7104. A summation of the evidence of record at the time of the last denial of the claim in February 2003 reveals an opinion by a VA neurological examiner that the Veteran's headache pattern was more consistent with muscle contraction headaches, and not migraines in 2002; and reveals an in-service diagnosis of migraines, with an explanation by the then-treating physician that the Veteran's manifested symptoms were most compatible with migraines except for their sudden severe onset. Records reveal that the Veteran also gave a history of tension headaches since 1963; and post-service records reveal a yearlong history of occipital headaches in 1970, occasionally associated with blurred vision. Records also reveal a diagnosis of chronic headaches in May 1970, and a history of two migraine headaches over the previous weekend. Muscle contraction headaches were diagnosed in September 1998, and tension headaches were diagnosed in October 1999. In November 2000, the Veteran testified that his migraines have persisted since active service; and that he treated them with over-the-counter medications. Based on this evidence, the Board concluded in February 2003 that there was neither evidence of a current diagnosis of migraines linked to active service; nor evidence of a medical opinion relating any current headache disability to active service. The Veteran did not appeal, and the decision is final. 38 U.S.C.A. § 7104. The present claim was initiated by the Veteran in July 2007. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Under 38 C.F.R. § 3.156(a), "new evidence" is existing evidence not previously submitted; "material evidence" is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Furthermore, new and material evidence is "neither cumulative nor redundant" of evidence of record at the time of the last prior final denial, and must "raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence added to the record since February 2003 includes additional VA treatment records showing assessments of migraine in March 2007, May 2008, December 2008, June 2009, November 2009, June 2010, January 2011, and July 2011; a December 2007 VA examination, noting a significant history of muscle tension headaches; a March 2011 hearing transcript; and statements by the Veteran. The Veteran testified that he had migraine headaches about two or three times a week in active service; and that the headaches he had in active service were more severe than headaches he had prior to active service. He also testified that he would lie down and put a cold compress on his forehead, and that he was sometimes late going to work because of the severity of his headaches. He testified that the headaches prior to service were more of a general type headache. While much of this evidence is new in that it was not previously of record, the bulk of the evidence tends to show intermittent migraine headaches both during service and after service. New evidence that is not cumulative and is related to the previous denial of the claim for service connection consists of VA records showing current assessments of migraine at various times, and the Veteran's testimony. Given the presumed credibility, the additional evidence is both new and material because it raises a reasonable possibility of substantiating the claim. Hence, the Veteran's claim for service connection for migraine headaches is reopened. 38 U.S.C.A. § 5108. ORDER The appeal seeking service connection for PTSD is dismissed. A compensable evaluation for deviated nasal septum and rhinitis is denied. New and material evidence has been submitted to reopen the claim for service connection for migraine headaches. REMAND VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Migraine Headaches The Veteran contends that service connection for migraine headaches is warranted on the basis that he was diagnosed and treated for migraine headaches in active service. He testified that the headaches he had in active service were more severe than the headaches he had prior to active service, and that he had to lie down and put a cold compress on his forehead. The Veteran also testified that his migraine headaches continued post-service. He is competent to describe his symptoms. The Board notes that, on a "Report of Medical History" completed by the Veteran at service entry in September 1967, the Veteran reported frequent or severe headache, and reported dizziness or fainting spells. The examiner then noted that the Veteran "used to get headaches and dizzy spells, none now." Both in March 1969 and in April 1969, the Veteran was treated for complaints of dizziness and headaches; the examiner noted tension headaches off and on since 1963, and some relief with medication. At that time the Veteran reported that, following a car accident five years ago, he had headaches accompanied by blackout spells; and reported no history of migraine. In October 1969, the Veteran again reported dizzy spells and slight nausea. He was assessed with chronic headaches in May 1970, and the examiner then noted that the impression in October 1969 was migraine headaches. Later in May 1970, the examiner noted that the Veteran had two migraine headaches over the weekend with blurred vision and nausea. In June 1970, the Veteran reported headaches, very severe; and reported having headaches on and off for several years. The Veteran then reported that the headaches were accompanied by visual aura, but no nausea or vomiting. In October 1971, he was again treated for dizziness and headaches. Recent VA treatment records show assessments of migraine at various times from 2007 to 2011. Under these circumstances, the Board finds that an examination is needed to determine whether the Veteran has current migraine headaches that either had their onset during service or are related to his active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (4) (2012). Sleep Apnea The Veteran seeks service connection for sleep apnea and has asserted that the claimed disability is secondary to his service-connected deviated nasal septum and rhinitis. Service treatment records do not reflect any findings or complaints of sleep apnea or a sleeping disorder. The post-service treatment records show that the Veteran underwent a sleep study in December 2003, and was diagnosed with significant obstructive sleep apnea syndrome. Treating options were discussed, and weight loss was recommended. Following further study, a C-Pap was provided to the Veteran. VA examiners in December 2007 and in July 2011 opined that the Veteran's deviated nasal septum was less likely as not the cause of his sleep apnea; rather, the Veteran's neck abnormalities (thick neck) and obesity were identified as more prominent causes for his sleep apnea. With regard to the Veteran's claim for secondary service connection, the Board finds that neither the December 2007 examiner nor the July 2011 examiner provided an opinion regarding whether the Veteran's sleep apnea is aggravated by the service-connected deviated nasal septum and rhinitis. Hence, the Board cannot resolve this matter without further medical clarification. While further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file (physical or electronic), VA treatment records for migraine headaches and for sleep apnea, dated from May 2012 to present. 2. Afford the Veteran a VA examination to identify all current disability underlying the Veteran's current complaints of migraine headaches, and the likely etiology of each disease or injury. For any current disability identified, the examiner is requested to determine whether it is at least as likely as not (50 percent probability or more) that it is the result of disease or injury incurred or aggravated during active service-specifically, to include the diagnosis of migraine headaches, as noted in service treatment records in 1969 and 1970; and the Veteran's account of continuing symptoms since then. The examiner should provide a rationale for the opinions. The examiner is asked to explain the reasons behind any opinions offered. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file must be made available to the examiner designated to examine the Veteran, and the examination report should note review of the file. 3. The July 2011 VA examination report should be returned to the examiner (or, if that examiner is unavailable, a suitable substitute) for an addendum identifying any current sleep apnea, and expressing an opinion as to: (a) Whether it at least as likely as not (50 percent probability or more) either had its onset in active service or is otherwise related to active service. (b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected deviated nasal septum and rhinitis aggravated (i.e., increased in severity) the sleep apnea beyond the natural progress. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's sleep apnea found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected deviated nasal septum and rhinitis. All opinions and conclusions expressed must be supported by a complete rationale in a report. The Veteran's claims file must be made available to the examiner, and the examination report should note review of the file. 4. After ensuring that the requested actions are completed, re-adjudicate the claims remaining on appeal. If the benefits sought are not fully granted, furnish a supplemental statement of the case (SSOC) and then return the claims file to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter that 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs