Citation Nr: 1333273 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-34 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to April 1971, including service in the Republic of Vietnam. He also served with the Army National Guard from November 1972 to May 1994. He received the Army Commendation Medal. This matter came to the Board of Veterans' Appeals (Board) from a May 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In January 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO and a transcript of that hearing has been associated with the claims folder. In May 2011, the Board granted service connection for ischemic heart disease and a psychiatric disability, to include PTSD; denied entitlement to service connection for a colon disability and remanded the issues of entitlement to service connection for sleep disability and hypertension. The Board referred the issue of entitlement to a total disability rating due to individual unemployability (TDIU) to the Agency of Original Jurisdiction (AOJ) for adjudication. This adjudication does not appear to have occurred and the issue is again referred to the AOJ. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The issue of entitlement to service connection for sleep apnea was remanded to obtain an opinion as to whether his sleep apnea is due to service or due to or aggravated by his service-connected ischemic heart disease. See 38 C.F.R. § 3.310 (2103). In July 2011, the Veteran underwent VA examinations, but the examiner did not provide reasons for the opinions that met standards imposed by the courts. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the case is REMANDED for the following actions: 1. Ask that the July 2011 VA examiner review the claims folder and this Remand, and provide opinions as to the following: (a) whether sleep apnea is at least as likely as not (a 50 percent or higher degree of probability) due to service, to include herbicide exposure. The examiner should be made aware that it is presumed that the Veteran was exposed to herbicides during active service in Vietnam. (b) whether sleep apnea is at least as likely as not (a 50 percent or higher degree of probability) proximately due to service-connected ischemic heart disease; (c) whether sleep apnea at least as likely as not (a 50 percent or higher degree of probability) has undergone a permanent increase in its severity due to a service-connected ischemic heart disease. The examiner should note whether there is medical evidence created prior to any aggravation, or the earliest evidence created at any time between the time of aggravation and medical evidence showing the current level of severity of the current disability, that shows a baseline of the sleep apnea prior to the aggravation. (d) whether hypertension is at least as likely as not (a 50 percent or higher degree of probability) due to service, to include herbicide exposure. The examiner should be made aware that it is presumed that the Veteran was exposed to herbicides during active service in Vietnam. (e) whether hypertension is at least as likely as not (a 50 percent or higher degree of probability) proximately due to service-connected PTSD; (f) whether sleep apnea at least as likely as not (a 50 percent or higher degree of probability) has undergone a permanent increase in its severity due to a service-connected PTSD. The examiner should note whether there is medical evidence created prior to any aggravation, or the earliest evidence created at any time between the time of aggravation and medical evidence showing the current level of severity of the current disability, that shows a baseline of the hypertension prior to the aggravation. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. If the July 2011 VA examiner is unavailable, another qualified VA examiner should be requested to provide the opinions as requested. If deemed necessary, the Veteran should be scheduled for an examination and thereafter opinions should be proffered. 2. If the claims are not granted in full, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran and his representative have the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ Mark D. Hindin 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).