Citation Nr: 1334684	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  06-00 185	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for sleep apnea, to include as secondary to service-connected chronic obstructive pulmonary disease (COPD).  

2.  Entitlement to service connection for gastrointestinal reflux disease (GERD), to include as secondary to service-connected degenerative arthritis of the lumbar spine and treatment therefor.  

3.  Entitlement to service connection for an acquired psychiatric disorder, inclusive of depression.  

4.  Entitlement to an increased rating (evaluation) in excess of 20 percent for degenerative arthritis of the lumbar spine prior to July 11, 2011, and in excess of 40 percent from July 11, 2011.   

5.  Entitlement to an increased rating for bilateral hearing loss, in excess of zero percent prior to March 1, 2013, and in excess of 10 percent from March 1, 2013.   



REPRESENTATION

Appellant represented by:	Virginia Girard-Brady, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from February 1965 to February 1981.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions dated in May 2005 and December 2006 of the Regional Office (RO) in North Little Rock, Arkansas.  

Pursuant to his request, the Veteran was afforded a Board hearing (Travel Board) before the Board, sitting in North Little Rock, Arkansas, in December 2007.  A transcript of the hearing is of record.  

By its decision entered on December 9, 2008, the Board of Veterans' Appeals (Board) denied service connection for sleep apnea, to include as secondary to service-connected COPD, and denied service connection for GERD, to include as secondary to service-connected degenerative arthritis of the lumbar spine.  In addition, the Board determined that new and material evidence had not been received by VA in order to reopen service connection for depression.  The issues of entitlement to increased ratings for degenerative arthritis of the lumbar spine and for bilateral hearing loss were remanded for additional development.    

An appeal to the U.S. Court of Appeals for Veterans Claims (hereinafter Court), followed.  The parties to that appeal jointly moved the Court to vacate the Board's decision of December 2008 and remand the case to the Board for further action.  By its order, dated in December 2009, the Court granted the parties' motion, while incorporating by reference into such order the parties' joint motion to vacate and remand.  

In a June 2010 decision, the Board determined that new and material evidence had been received by VA in order to reopen service connection for depression.  The issues of service connection for sleep apnea to include as secondary to service-connected COPD, GERD to include as secondary to service-connected degenerative arthritis of the lumbar spine, and depression, and the issues of entitlement to increased ratings for degenerative arthritis of the lumbar spine and for bilateral hearing loss, were remanded for additional development.  

The Board finds that the agency of original jurisdiction (AOJ) complied with the mandates of the June 2010 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders).  The AOJ provided VA examinations to obtain medical evidence as to the current severity of the hearing loss.  The AOJ also obtained outstanding VA treatment records and associated the records with the file.  

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence.   

In a March 2013 rating decision, the RO assigned a 40 percent rating to the service-connected degenerative arthritis and ankylosing spondylitis of the lumbar spine from July 11, 2011 and assigned a 10 percent rating to the bilateral hearing loss from March 1, 2013.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of service connection for sleep apnea, GERD, and depression, and entitlement to an increased disability rating for the lumbar spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO.  


FINDINGS OF FACT

1.  Prior to March 1, 2013, the service-connected bilateral hearing loss was manifested by hearing acuity measured at a Level I designation in the right ear and Level II designation in the left ear.   

2.  From March 1, 2013, the service-connected bilateral hearing loss has been manifested by hearing acuity measured at a Level III designation in the left ear and Level IV designation in the right ear.     


CONCLUSIONS OF LAW

1.  Prior to March 1, 2013, the criteria for the assignment of a compensable disability evaluation for the service-connected bilateral hearing loss have not been met or more nearly approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2013).

2.  From March 1, 2013, the criteria for the assignment of a disability evaluation in excess of 10 percent for the service-connected bilateral hearing loss have not been met or more nearly approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013).  A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).  

After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue of entitlement to an increased rating for hearing loss.  In this appeal, in letters dated in January 2005, February 2005, September 2006, January 2009, and July 2010, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for an increased rating as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  Additionally, the September 2006 and July 2010 letters provided the Veteran with the general criteria for the assignment of an effective date and disability rating.  Although the notice was not issued before the initial adjudication on appeal, the Veteran has not been prejudiced as the claim was readjudicated in supplemental statement of the case dated in March 2013.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).  In December 2006 and July 2007, the Veteran informed VA that he had no additional evidence or information to submit in support of his claim. 

The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied.  All available service treatment records were obtained.  VA treatment records dated from 1997 to 2013 are associated with the claims folder.   

The Veteran underwent VA audiometric examinations in 2005 and 2013 to obtain medical evidence as to the current severity of the service-connected hearing loss disability.  These examinations were adequate because each was performed by a medical professional based on either a review of claims file or solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran, offered opinions, and provided a rationale for the opinions provided.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4).  For these reasons, the Board finds that the duties to notify and assist the Veteran in the claim have been met, so that no further notice or assistance to the Veteran is required.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  

The Court has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings:  The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  At the Board hearing, the undersigned Veterans Law Judge identified the issues, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to the worsening of the Veteran's hearing loss disability, including whether any worsening had occurred since the last VA examination.  Subsequently, the Board remanded the claim for increased rating for bilateral hearing loss for a VA audiology examination, which would provide missing evidence as to the more recent severity of disability of hearing loss.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.  


Disability Rating Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21 (2013).  

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.  The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a). 

A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Evaluations of defective hearing range from noncompensable to 100 percent.  The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four.  To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.

The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent eleven categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent eleven categories of decibel loss based on the pure tone audiometry test.  The numerical designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss.  For example, with the percentage of discrimination of 70 and an average pure tone decibel loss of 64, the numeric designation level is "V" for one ear.  The same procedure will be followed for the other ear.  38 C.F.R. § 4.85(b).

The percentage evaluation will be found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical column appropriate to the numeric designation level for the ear having the poorer hearing.  For example, if the better ear has a numeric designation level of "V," and the poorer ear has a numeric designation level of "VII," the percentage evaluation is 30 percent.  38 C.F.R. § 4.85(e), Diagnostic Code 6100.

The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz).



Analysis of Rating for Hearing Loss

The Veteran contends that he is entitled to an increased rating for hearing loss.  He states that his hearing loss is worse and he has to wear hearing aids now and he never did before.  See the Veteran's statements dated in February 2005 and May 2005 and the Veteran's testimony at the hearing before the Board in December 2007.   

Service connection for bilateral hearing loss was granted in a July 1981 decision and a zero percent rating was assigned from March 1, 1981.  The Veteran filed a claim for an increased rating in November 2004.  

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a compensable disability rating for the service-connected bilateral hearing loss prior to March 1, 2013.  For the rating period prior to March 1, 2013, the service-connected bilateral hearing loss was manifested by hearing acuity measured at a Level I designation in the right ear and Level II designation in the left ear, which warrants a noncompensable disability rating under Diagnostic Code 6100.  38 C.F.R. § 4.85. 

Upon VA audiometric evaluation in March 2005, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
45
35
45
60
75
RIGHT
40
35
45
80
80

The average puretone threshold for the left ear was 54 decibels.  Speech audiometry revealed speech recognition ability of 96 percent in the left ear.  The average puretone threshold for the right ear was 60 decibels.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear.  The findings of the March 2005 evaluation translates to level II hearing loss in the left ear and level I hearing loss in the right ear when applied to Table VI of the rating schedule.   This level of hearing loss warrants a zero percent rating and no higher under Table VII of the rating schedule.  Therefore, a compensable disability evaluation is not warranted under Diagnostic Code 6100 for this period.  38 C.F.R. § 4.85.  

The Veteran was afforded a VA audiometric examination in July 2011 but the results were found to be unreliable.  See the March 2013 VA audiometric report.  

Upon VA audiometric evaluation in March 2013, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
30
30
45
60
70
RIGHT
30
30
45
80
80

The average puretone threshold for the left ear was 51 decibels.  The average puretone threshold for the right ear was 59 decibels.  The examiner indicated that use of speech discrimination scores was not appropriate for the Veteran. 

The findings of the March 2013 evaluation translates to level III hearing loss in the left ear and level IV hearing loss in the right ear when applied to Table VIA of the rating schedule.  This level of hearing loss warrants a 10 percent rating and no higher under Table VII of the rating schedule; therefore, a 10 percent rating and no higher is warranted under Diagnostic Code 6100 from March 1, 2013.  38 C.F.R. 
§ 4.85, Diagnostic Code 6100.  

The exceptional patterns of hearing impairment criteria at 38 C.F.R. § 4.86 have not been met at any time to permit alternative rating on that basis.  The VA treatment records do not provide any other basis for the assignment of a higher rating for the service-connected hearing loss.  

In summary, for the reasons expressed, the Board concludes that the preponderance of the evidence is against the assignment of a compensable disability rating for the service-connected bilateral hearing loss prior to March 1, 2013 and the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected bilateral hearing loss from March 1, 2013.  Because the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.  Accordingly, on this record, the claim of an increased rating for bilateral hearing loss must be denied.

Extraschedular Consideration

In analyzing the Veteran's claim, the Board has considered whether referral for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) is warranted for the service-connected bilateral hearing loss.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that, unlike the rating schedule for hearing loss, the extraschedular provisions did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted.  The Court held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak, 21 Vet. App. at 455.  To that end, the March 2013 VA examination assessed that the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work.  The Veteran described the impact as "can't hear."  This functional limitation, impairment in the ability to hear, is contemplated by the rating criteria.    

The schedular criteria are adequate to rate the Veteran's bilateral hearing loss disability.  The Veteran's complaints and symptoms concern diminished auditory acuity and speech recognition. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing.  Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria.  

The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994). 

Moreover, the testing is to be performed without the use of hearing aids.  See 
38 C.F.R. § 4.85(a).  The scores represent a rating made on the worst possible objective measure of performance.  The Veteran does not have any symptoms from his service-connected disability that are unusual or are different from those contemplated by the schedular criteria.  The Veteran merely disagrees with the assigned evaluation for his level of impairment.  The available schedular evaluations for that service-connected disability are adequate, and referral for extraschedular consideration is not warranted.  38 C.F.R. § 3.321(b); Thun; supra.


ORDER

A compensable disability rating prior to March 1, 2013, and a disability rating in excess of 10 percent from March 1, 2013, for the service-connected bilateral hearing loss disability, is denied.  


REMAND

VCAA specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002).  

Separate Rating for Neurological Disorder

The Board finds that a VA neurological examination is necessary to assist in determining whether a separate compensable rating is warranted for any neurological abnormalities or manifestations due to the service-connected degenerative arthritis and ankylosing spondylitis.  The General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note 1 (2013).  

In this case, there is medical evidence suggestive of possible neurologic findings to raise the question of whether the Veteran has a current neurological disability.  The July 2011 VA examination report indicates that the Veteran reported having transmitted numbness and tingling in his right foot and he stated that he was unable to either dorsiflex or plantar flex his right foot.  The Veteran reported that this had been present for approximately five years and it had caused him substantial difficulties with walking and ambulation.  The examiner stated that he believed the Veteran's inability to dorsiflex or plantar flex his right foot was related to the spondylitis; however, the examiner did not provide a diagnosis for this manifestation.  

VA is required to conduct an accurate and descriptive medical examination based on the complete medical record.  38 C.F.R. §§ 4.1, 4.2 (2013); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one").  Thus, additional examination is necessary in order to assist in determining the nature and severity of any separate neurological manifestations due to the service-connected thoracolumbar spine disability.  

Service Connection for Sleep Apnea, GERD, and Depression

Regarding the claims of service connection for sleep apnea, GERD, and depression, in the June 2010 remand action, the AOJ was directed to afford the Veteran a VA examination in order to determine the nature and likely etiology of the claimed conditions.   The VA examiner was asked to render a medical opinion as to whether any of the service-connected disabilities caused or aggravated the claimed sleep apnea, GERD, and depression.  The Veteran was afforded a VA examination in July 2011.  An addendum opinion was obtained in 2012.  The VA examiners provided opinions as to whether the sleep apnea, GERD, and depression were related to active service and whether these disorders were caused by a service-connected disability; however, the examiners did not render opinions as to whether the claimed sleep apnea, GERD, and depression have been permanently worsened (aggravated) by one or more of the service-connected disabilities.  Thus, the Board finds that the RO should ask the examiner who conducted the July 2011 VA examination or a suitable replacement to prepare an addendum and provide opinions as to whether the claimed sleep apnea, GERD, and depression have been aggravated by one or more of the service-connected disabilities, including the medications used to treat the disabilities.    

The RO should appropriately contact the Veteran by letter and request that he provide sufficient information and, if necessary, authorization to enable the RO to obtain any pertinent VA or non-VA clinical records showing treatment of the sleep apnea, GERD, and depression and the service-connected lumbar spine disability.  The RO should make an attempt to obtain copies of any outstanding records from any identified treatment source. 

The RO should obtain the VA treatment records from the VA Healthcare System showing treatment of the claimed disabilities beginning in March 2013.  VA has a duty to seek these records.  38 U.S.C.A. § 5103A(b)(1).

Accordingly, these issues are REMANDED for the following action:

(Please note, 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.  The RO should take appropriate steps to contact the Veteran in order to have him identify any other VA or non-VA medical treatment rendered for the claimed sleep apnea, GERD, and depression and the service-connected lumbar spine disability.  The letter should request sufficient information to identify the health care providers, and, if necessary, signed authorizations, to enable VA to obtain any copies of any additional evidence.  

If the Veteran adequately identifies the health care providers and provides the completed authorizations, the RO should request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. 

2.  The RO should take all indicated action to obtain the copies of all clinical records from the VA Healthcare System showing treatment from March 2013 of the claimed sleep apnea, GERD, and depression and the service-connected lumbar spine disability.  

3.  The RO then should schedule the Veteran for a VA neurological examination to assist in determining the nature and current severity of any neurological manifestations due to the service-connected thoracolumbar spine disability.  The Veteran's VA claims folder should be made available to the examiner for review in connection with the examination.  The examiner should report all neurological symptoms and manifestations due to the service-connected thoracolumbar spine disability.  The examiner should indicate whether there is evidence of bilateral lower extremity radiculopathy.  

The examiner should indicate whether any neurological manifestations due to the service-connected thoracolumbar spine disability result in partial or complete paralysis, neuralgia, or neuritis of any nerve; specify the nerve involved; and express an opinion as to whether any partial paralysis, neuritis or neuralgia is mild, moderate, or severe. 

4.  The RO then should ask the VA examiner who conducted the July 2011 VA examination (or if he or she is no longer available, a suitable replacement) to prepare an addendum to offer the following medical opinions: (1)  Is it as likely as not (50 percent probability or more) that the sleep apnea is aggravated by any of the service-connected disabilities to include medications used to treat the service-connected disabilities?  (2) Is it as likely as not that the GERD is aggravated by any of the service-connected disabilities to include medications used to treat the service-connected disabilities? and (3) Is it as likely as not that depression is aggravated by any of the service-connected disabilities to include medications used to treat the service-connected disabilities?   

"Aggravation by" service means a permanent worsening of disability, beyond a normal progression, occurring during service.  

If the examiner opines that the claimed sleep apnea, GERD, and/or depression are aggravated by service-connected disabilities and/or the use of medications, the examiner should indicate the degree of disability due to the aggravation.  

The VA claims folder should be made available to the examiner for review in connection with the examination.  The examiner should provide a rationale for all conclusions.  

If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the RO should schedule the Veteran for such an examination. 

5.  After completing all indicated development, the RO should readjudicate the claims remaining on appeal, including entitlement to a separate compensable rating for a neurological disability due to the service-connected thoracolumbar spine disability, in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response.

The Veteran has 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. 2012).



______________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs