Citation Nr: 1523390 Decision Date: 06/03/15 Archive Date: 06/16/15 DOCKET NO. 08-24 772 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from October 1995 to August 1999. The Veteran also served on active duty in the United States Naval Reserve from November 2005 to October 2006, and from April 2007 to September 2009. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2008 rating decision in which the RO denied service connection for bilateral hearing loss; granted service connection for PTSD, and assigned an initial rating of 50 percent, effective September 8, 2007; and denied service connection for sleep apnea. With regard to the matter of service connection for bilateral hearing loss and sleep apnea, the Veteran filed a notice of disagreement in February 2008. With regard to the matter of a higher initial rating for PTSD, the Veteran filed a notice of disagreement in June 2008. In July 2008, the RO issued a statement of the case (SOC) as to all three issues. In August 2008, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) with respect to the claims for service connection for bilateral hearing loss and sleep apnea. With regard to the claim for a higher initial rating for PTSD, the Veteran filed a statement, accepted in lieu of a VA Form 9, which was received in January 2009. Thus, the Veteran perfected his appeal as to all three issues listed. In an August 2010 rating decision, the RO assigned a higher initial rating of 70 percent for PTSD, effective September 8, 2007. However, as the Veteran was not granted the maximum, available benefit, the claim for higher rating for PTSD remained viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); In August 2014, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that this appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and the Virtual VA claims processing system. The Board's disposition of the claims for service connection for bilateral hearing loss and for an initial rating in excess of 70 percent for PTSD is set forth below. The claim for service connection for sleep apnea is addressed in the remand following the order; that matter is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. FINDING OF FACT In an October 2013 statement, received prior to the promulgation of a decision, the Veteran indicated his desire to withdraw from appeal his claims for service connection for bilateral hearing loss and for an initial rating in excess of 70 percent for PTSD. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to the claims for service connection for bilateral hearing loss and for an initial rating in excess of 70 percent for PTSD are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). A substantive appeal may be withdrawn in writing or on the record during a hearing, and at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204 (2014). The withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In an October 2013 letter, the Veteran withdrew from appeal the claims for service connection for bilateral hearing loss and for an initial rating in excess of 70 percent for PTSD. Thus, there remains no allegation of errors of fact or law for appellate consideration with regard to these matters. Accordingly, the Board does not have jurisdiction to review the appeal as to these claims and they must be dismissed. ORDER The appeal as to the claim for service connection for bilateral hearing loss is dismissed. The appeal as to the claim for an initial rating in excess of 70 percent for PTSD is dismissed, REMAND The Board's review of the claims file reveals that additional AOJ action on the claim remaining on appeal is warranted. The Veteran is seeking service connection for sleep apnea. The Veteran maintains that his currently diagnosed sleep apnea had its onset during a period of active duty service from 2005 to 2006. Specifically, during his August 2014 hearing, the Veteran stated that his fellow service members complained to him about his excessive and loud snoring. He stated that there were times that he would be moved outside of the tent or that a sleeping bag would be placed over him in order to keep the noise down. He also stated that following his 2005-2006 deployment, he sought VA treatment because his wife told him that he would stop breathing while sleeping and that she would have to wake him. He stated that she eventually had to sleep in another room because his snoring was very loud. In another statement, dated in February 2008, the Veteran indicated that, although he reported experiencing extreme fatigue and difficulty sleeping while serving in Iraq from 2005 to 2006, he did not receive medical treatment because he was told that treatment was unavailable due to his remote location in country. During his second deployment, he suffered from similar symptoms. He again stated that, upon returning home, his wife began to notice that he would stop breathing when sleeping. Finally, he stated that he did not experience any problems with sleeping prior to his deployment in 2005. A review of the Veteran's VA treatment records reveals that, in December 2006, two months after his return from his first deployment to Iraq, the Veteran complained of sleep disturbances and sleepless nights approximately three times a week. The Veteran also stated that he would wake up feeling tired, and that he was unsure whether he was experiencing nightmares or not. That same month, the Veteran was referred for a sleep study for possible obstructive sleep apnea. In March 2007, a sleep study was conducted. Based on the results of the study, the Veteran was diagnosed with mild sleep apnea, and a CPAP machine was ordered. During his hearing, the Veteran stated that he did not receive his CPAP machine until he returned from second deployment in September 2007. A month after the sleep study was performed, the Veteran was deployed to Iraq from April 2007 to September 2007. The report of a periodic health assessment in October 2007 also reflects a diagnosis of sleep apnea. In support of his claim, the Veteran submitted a statement from his wife, received in June 2008. The Veteran's wife indicated that, upon returning from military service, the Veteran's had a hard time sleeping. She stated that before he began using his CPAP, his problems were worse. She also stated that when he did not use the CPAP machine, he would stop breathing. Consistent with the Veteran's treatment records, the Veteran's wife also stated that when he awoke in the morning, he never seemed rested and that he was constantly tired. Pursuant to VA's duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (a) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) established that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service. 38 C.F.R. § 3.159 (2014). In McLendon v. Nicholson, 20 Vet. App. 79, (2006), the United States Court of Appeals for Veterans Claims noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the Veteran's military service, is a low threshold. McLendon, 20 Vet. App. at 83. To date, no VA examination has been conducted or medical opinion otherwise sought on the matter of the etiology of the Veteran's sleep apnea. In light of the evidence currently of record, the Board finds that the threshold requirements discussed in McLendon are met, thus warranting an examination in accordance with the duty to assist. See Charles v. Principi, 16Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). In doing so, the Board concludes that, in order to fulfill the duty to assist in providing a complete and adequate examination under the circumstances of this case, the examination should reflect review of the entire claims file and should provide an opinion addressing what relationship, if any, the Veteran's sleep apnea has to his active military service. See Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014); Green v. Derwinski, 1 Vet. App. 121, 124 (1991 (duty to assist may include conducting "a thorough and contemporaneous medical examination, one which takes into account the record of prior medical treatment, so that the evaluation of the claims disability will be a fully informed one"). The Veteran is hereby advised that the failure to report for the scheduled examination, without good cause, may well result in denial of his claim. See 38 C.F.R. § 3.655 (2014). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. Prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the record contains Social Security Administration records that include VA treatment records dated through February 2, 2009. The most recent adjudication of the Veteran's claim for service connection for sleep apnea, the August 2010 supplemental SOC, indicates that VA treatment records dated through April 15, 2009, were considered. Moreover, the claims file reflects that the most recent VA treatment records associated were submitted by the Veteran and were dated through May 9, 2013. The Veteran has received treatment at the South Valley Community Based Outpatient Clinic in Tulare, California, and the VA Medical Center (VAMC) in Fresno, California. To ensure that the record contains all pertinent VA treatment records pertaining to the Veteran's sleep apnea, on remand, the AOJ should obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, to include from the above noted facilities) See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2014). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran (to include from the South Valley Community Based Outpatient Clinic in Tulare, California, and the Fresno VAMC). Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, all private (non-VA) records documenting treatment or diagnosis of sleep apnea that are not already associated with the claims file. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination for sleep apnea by an appropriate physician. The entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on consideration of all pertinent medical and other objective evidence, and all lay assertions and to the nature and extent of the Veteran's symptoms, the examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea had its onset during or is otherwise medically related to his military service-to include the symptoms alleged to have occurred therein. All examination findings/testing results, along with a complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for service connection for sleep apnea in light of pertinent evidence (to particularly include all evidence added to the claims file since the last adjudication of the claim) and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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 2014). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs