Citation Nr: 1337941 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-23 209 ) 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, to include as due to herbicide exposure and/or as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for a right knee disorder. 6. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as due to herbicide exposure and/or as secondary to service-connected coronary artery disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. He is the recipient of the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and January 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Specifically, the September 2008 rating decision denied service connection for bilateral hearing loss, tinnitus, a left knee disorder, a right knee disorder, and COPD. The January 2009 rating decision denied service connection for sleep apnea. The Veteran perfected appeals as to both decisions. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals a December 2011 rating decision in which the RO granted service connection for coronary artery disease and an October 2013 Informal Hearing Presentation. The remainder of the documents in the file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board notes that the September 2008 rating decision on appeal also denied the Veteran's claim for service connection for a heart disorder and he perfected an appeal with regard to this issue. Effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. As noted above, by rating decision dated in December 2011, the RO granted service connection for coronary artery disease. As such, the Board finds that the issue of entitlement to service connection for a heart disorder has been granted in full and is no longer before the Board. The issues of entitlement to service connection for sleep apnea, bilateral knee disorders, and COPD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Bilateral hearing loss did not manifest within one year of the Veteran's discharge from service and it is not shown to be causally or etiologically related to any disease, injury, or incident during service. 2. Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by the Veteran's active duty military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. In an August 2008 letter, sent prior to the September 2008 rating decision on appeal, the AOJ notified the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. The August 2008 letter also advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman. Relevant to the duty to assist, all of the Veteran's service treatment records, VA treatment records, Social Security Administration (SSA),and private treatment records have been obtained and considered. The Veteran has not identified any additional outstanding records that have not been requested or obtained. The Veteran was afforded a VA examination in October 2008 with respect to the issues decided herein. The Board finds that such VA examination and accompanying opinions are adequate to decide the issues as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and examination. The opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he currently has bilateral hearing loss and tinnitus as a result of his in-service exposure to excessive noise while working as a Mortar Platoon in light artillery. Specifically, the Veteran explained in his May 2009 substantive appeal that a lot of the operations he worked on were set up around larger artillery batteries, examples being 155 howitzer and 175 mm. He indicated that he was to support the larger batteries and was never told to wear ear protection. He indicated that he and his fellow service members would put their fingers in their ears to help with the loud noises sometimes. Therefore, he alleges that service connection for such disorders is warranted. The Veteran's service treatment records are negative for either hearing loss or tinnitus during service. Significantly, an audiological examination report conducted during his enlistment in September 1966 reveals the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 0 0 0 0 Left Ear 0 0 0 0 Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Based on such conversion, the Veteran's audiological examination at the time of his service entrance in September 1966 reveals the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 10 10 5 Left Ear 15 10 10 5 In his September 1966 Report of Medical History the Veteran denied hearing loss. An audiological examination report at separation dated in September 1968 revealed the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 5 5 5 5 Left Ear 5 5 5 5 In his September 1968 Report of Medical History the Veteran again denied hearing loss. However, the Board notes that, in light of the Veteran's receipt of the Combat Infantryman Badge, the provisions of 38 U.S.C.A. § 1154(b) are applicable in this case. Such state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection but ease a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Therefore, the Board finds that the Veteran's allegations of being exposed to excessive noise coincident with such combat service to be credible. The Veteran filed a claim for service connection for bilateral hearing loss and tinnitus in June 2008. Significantly, the Veteran wrote that his hearing loss and tinnitus began in 2002. The Veteran was afforded a VA audiological examination in October 2008. Audiological testing revealed the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 20 25 40 60 Left Ear 20 25 30 40 50 Puretone Threshold Average Right Ear 36.25 Left Ear 36.25 Speech discrimination Right Ear 96% Left Ear 96% Notably, this report shows bilateral hearing loss pursuant to 38 C.F.R. § 3.385. Furthermore, tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, as the Veteran has current diagnoses of bilateral hearing loss and tinnitus, the remaining inquiry is whether such are related to his in-service noise exposure. The October 2008 VA examiner noted the Veteran's military and post-military noise exposure. Specifically, it was noted that the Veteran served in combat during military service and was exposed to mortar 81mm. Post-service the Veteran reported that he worked as a restaurant manager as well as a plant production supervisor for 29 years, working in low noise but high noise areas were within the plant. He also reported recreational noise exposure of hunting. The Veteran reported tinnitus in the right ear, which was constant, and indicated that the tinnitus had an onset of 25 to 30 years prior to the evaluation. Based on a review of the claims file the examiner noted that military noise exposure was documented in combat but that the Veteran's entrance and exit examinations were normal, bilaterally. Non-military noise exposure was limited to possible employment (plant supervisor) and hunting. Therefore, the examiner opined that the Veteran's bilateral hearing loss was less likely as not (less than 50/50 probability) caused by or a result of noise trauma during military service. This was based on the entrance and exit examinations which were normal, bilaterally. The reported tinnitus was probably related to the hearing loss (greater in the right ear), therefore, it was felt to be less likely as not (less than 50/50 probability) caused by or a result of noise trauma during military service. The Board has first considered whether service connection is warranted for bilateral sensorineural hearing loss on a presumptive basis. However, the record fails to show that the Veteran manifested such to a degree of 10 percent within the one year following his active duty service discharge in October 1968. Moreover, as will again be noted below, he has reported that such disorder began in 2002. As such, presumptive service connection, to include on the basis of continuity of symptomatology is not warranted for bilateral sensorineural hearing loss. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Additionally, the probative evidence of record fails to show a link between the Veteran's in-service noise exposure and his current bilateral hearing loss and tinnitus. In this regard, the Board notes that in his June 2008 claim for benefits, the Veteran reported that his bilateral hearing loss and tinnitus began in 2002. Furthermore, at the October 2008 VA examination, he reported that his right ear tinnitus began 25 to 30 years previously (i.e., between 1978 and 1983), which is 10 to 15 years after the Veteran's discharge from military service. As above, the October 2008 VA examiner reviewed the claims file, interviewed the Veteran, and performed an audiological examination. He specifically noted the Veteran's normal audiological evaluations during enlistment and separation, his history of noise exposure both during and after service, and opined that it was less likely than not that hearing loss or tinnitus is related to military service. The Board accords great probative weight to the October 2008 VA examiner's opinion as such is predicated on an interview with the Veteran; a detailed review of his records, including his service enlistment and separation examinations; and an audiometric examination. Moreover, the October 2008 VA examiner's opinion contained clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. There is no contrary medical opinion of record. Furthermore, the Board notes that there is no evidence of audiometric test results reflecting an upward shift in tested thresholds in service, as was the case in Hensley, 5 Vet. App. at 159, rather audiological testing upon enlistment and separation shows that the Veteran's hearing actually improved over the course of his two years of active military service. The Board notes that the Veteran has contended on his own behalf that his bilateral hearing loss and tinnitus are related to his military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson, 581 F.3d at 1316. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's bilateral hearing loss and tinnitus and any instance of his military service, to include his exposure to noise, to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, while the Veteran is competent to describe his in-service noise exposure and his current problems regarding difficulty hearing and tinnitus, he cannot, as a layperson, provide competent medical evidence establishing a connection between his current hearing loss and tinnitus and his in-service noise exposure. In this regard, assessing the impact noise has on an individual's ability to hear involves consideration of the way humans process noise and the type, frequency, and volume of noise exposure. There is no indication that the Veteran possesses an expertise in such area. Additionally, he specifically indicated that his disorders had their onset between 1978 and 2002, over 10 to 34 years after his service separation. Moreover, he has offered only conclusory statements regarding the relationship between his in-service exposure to noise and his current bilateral hearing loss and tinnitus. Therefore, as the VA examiner possesses the expertise necessary to identify the relevant factors to consider in assessing causality and provided an opinion in consideration of all of the relevant evidence, the Board accords great probative weight to this opinion. As such, it is not outweighed by the lay opinion asserted by the Veteran. Furthermore, the Veteran has not alleged a continuity of hearing loss or tinnitus symptomatology. In this regard, he has reported that such disorders began either in 2002 or approximately 25 to 30 years prior to 2008, which would be in approximately 1978 to 1983. As the Veteran was discharged from service in 1968 and his symptoms did not begin for over 10 years, the Board finds that there is no continuity of symptomatology with respect to his bilateral hearing loss and tinnitus. Based on the foregoing, the Board finds that service connection is not warranted for bilateral hearing loss and tinnitus. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMAND The Veteran claims he is entitled to service connection for sleep apnea, bilateral knee disorders, and COPD. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide such claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With regard to the Veteran's claim for service connection for sleep apnea, he alleges that such is related to his in-service exposure to herbicides and/or as secondary to his service-connected diabetes mellitus, type II. The Board notes that, as he served in Vietnam, he is presumed to have been exposed to herbicides coincident with such service; however, sleep apnea is not a disease presumptive to herbicide exposure. 38 C.F.R. § 3.309(e), as amended, 75 Fed. Reg. 53,203 (August 31, 2010). His service treatment records are negative for complaints, treatment, or diagnoses referable to sleep apnea during service. Significantly, in September 1966 and September 1968 Reports of Medical History, the Veteran denied "frequent trouble sleeping." His post-service treatment records reflect that he was first diagnosed with sleep apnea in February 2007. In support of his claim, the Veteran submitted a February 2009 statement from Dr. F.E.W., in which the physician stated that the Veteran had severe obstructive sleep apnea and that data in medical literature indicates that there is a relationship between sleep apnea and diabetes mellitus. The Veteran also submitted photocopy of "Taber's Cyclopedic Medical Dictionary" which indicates that people with sleep apnea often have diabetes. The Veteran was afforded a VA respiratory examination in August 2009. During this examination, he reported that he was first diagnosed with sleep apnea in February 2007 and was diagnosed with diabetes in late 2007. The examiner opined that the Veteran's sleep apnea is less likely as not caused by or a result of diabetes mellitus. The examiner noted that a review of medical literature shows that sleep apnea has a high prevalence in adults with diabetes mellitus, type 2. However, there is no study found that states definitely that sleep apnea is caused by or aggravated by diabetes mellitus, type 2. The examiner cited the article: "Prevalence of sleep apnea in a population of adults with type 2 diabetes mellitus" from "Endocrine Practice," Einhorn et. al, published 10/25/07. However, the examiner did not discuss Dr. F.E.W.'s opinion or cited literature, or offer an opinion as to whether the Veteran's sleep apnea is directly related to his herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, a remand for an addendum opinion regarding this claim is necessary. With regard to the bilateral knee issues, the Veteran contends that during his active military service, he jumped from helicopters, three or four feet off the ground, wearing two mortar rounds and back packs which weighed approximately 30 to 40 pounds. He contends that this put excessive strain/shock on his knee joints. Service treatment records do not show any complaints of or treatment regarding to the knee, however, the Veteran's September 1968 separation examination shows that the Veteran experienced a wound to his right leg in 1966 and also indicates that the Veteran had a scar on the calf of his right leg. Moreover, as indicated previously, as he served in combat, his allegations of jumping from helicopters coincident with such service is considered sufficient evidence of such events. Post-service treatment records reflect that the Veteran was treated for torn medial meniscus of the right knee as early as May 1983 and was treated for internal derangement of the left knee as early as January 1984. With regard to the COPD issue, the Veteran contends that he suffers from COPD secondary to his service-connected coronary artery disease and/or as a result of his exposure to herbicides. Specifically, in his May 2009 substantive appeal, the Veteran indicated that he experienced problems with breathing due to an irregular heartbeat. The Veteran's service treatment records show that he suffered from a significant upper respiratory infection from April 1967 through May 1967 with complaints of chest pain and other symptoms such as hemoptysis or hematemesis. The Veteran contends that he was diagnosed with COPD in approximately 2007. Post-service private treatment records reflect a diagnosis of COPD as early as January 2007. Here, the Veteran has submitted medical evidence showing current diagnoses of bilateral knee disorders and COPD. Moreover, the Veteran has provided reasonable theories as to why these disorders are related to his military service. Therefore, the Veteran should be scheduled for a VA examination to determine the nature of his bilateral knee disorders and COPD and whether such are related to his military service and/or, in the case of COPD, caused or aggravated by a service-connected disability. Additionally, the Veteran has not been provided with VCAA notice regarding the secondary aspect of his claim for service connection for COPD. Such should be accomplished on remand. Finally, while on remand, the Veteran should be provided with an opportunity to identify any VA or non-VA healthcare provider who has treated him for his sleep apnea, bilateral knee disorders, and COPD, particularly treatment since February 2009. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for COPD as secondary to his service-connected coronary artery disease. 2. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for his sleep apnea, bilateral knee disorders, and COPD, particularly treatment since February 2009. After securing any necessary authorization from him, obtain all identified records not already contained in the claims file. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's August 2009 VA examination for his sleep apnea. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the August 2009 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, to specifically include Dr. F.E.W.'s statement and cited literature, the examiner should offer an opinion on the following: (A) Is it at least as likely as not that the Veteran's sleep apnea is related to his military service, to include his in-service herbicide exposure? (B) Is it at least as likely as not that the Veteran's sleep apnea is caused OR aggravated by his diabetes mellitus type II? In addressing such inquiry, the examiner should specifically consider Dr. F.E.W.'s statement and cited literature. The rationale for any opinion offered should be provided. 4. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination(s) to determine the current nature and etiology of his bilateral knee disorders and COPD. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Bilateral Knees. (A) The examiner should identify all current diagnoses of the left and right knees. (B) For each currently diagnosed left and/or right knee disorder, the examiner should then render an opinion as to whether it is as least as likely as not that such disorder is related to his military service, to include the Veteran's report of repeated in-service injuries to the knees and the September 1968 separation examination showing an in-service wound to the right leg. COPD. (A) The examiner should indicate whether the Veteran currently has COPD. (B) Thereafter, the examiner should provide an opinion as to whether it is as least as likely as not that the Veteran's COPD is related to his military service, to include the Veteran's documented in-service upper respiratory infection and his presumed exposure to herbicides. (C) The examiner should also offer an opinion as to whether the Veteran's COPD is caused OR aggravated by his service-connected coronary artery disease. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs