Citation Nr: 1603653 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 12-26 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as due to environmental hazards in the Gulf War. 2. Entitlement to service connection for erectile dysfunction. 3. Whether new and material evidence has been received to reopen a previously denied claim for service connection for sickle cell trait with bleeding and migraines. 4. Entitlement to an initial rating higher than 10 percent for pseudofolliculitis barbae (PFB). 5. Entitlement to an initial rating higher than 10 percent for degenerative disc disease of the cervical spine. 6. Entitlement to an initial rating higher than 10 percent for allergic rhinitis. 7. Entitlement to an initial compensable rating for an inguinal hernia. 8. Entitlement to an effective date earlier than August 26, 2008 for the grant of service connection for PFB. 9. Entitlement to an effective date earlier than August 26, 2008 for the grant of service connection for allergic rhinitis. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1987 to March 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The April 2009 rating decision initially denied service connection for all issues on appeal. The August 2012 rating decision granted service connection for PFB, degenerative disc disease of the cervical spine, allergic rhinitis, and an inguinal hernia. The Veteran underwent a videoconference hearing before the undersigned Veterans' Law Judge in October 2015; a hearing transcript is contained in the electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required for the Veteran's claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that he is afforded every possible consideration. The Veteran testified at his videoconference hearing that he has received treatment at VA facilities for his conditions. The record does not contain any VA treatment records and it is not clear if any attempt has been made to retrieve such records. This must be accomplished on remand. Additionally, the Veteran testified that he received private treatment for several of his conditions at an Emory Healthcare facility. He submitted copies of certain records from Emory on two different occasions. Additionally, he submitted a VA 21-4142 Authorization and Consent to Release Information to VA for "Emory Hospital" in December 2008. It does not appear that the RO made any attempt to obtain all of the Veteran's records from this facility. Furthermore, the Veteran testified that certain of his conditions caused him to receive recent treatment there. On remand, an attempt should be made to retrieve all outstanding records from Emory Healthcare. Additionally, the Veteran should be asked for the names and addresses of all other private medical facilities he has obtained treatment at for his conditions. The Veteran testified that his allergic rhinitis condition had worsened since his last examination. Likewise, he stated on his May 2015 VA Form 9 Substantive Appeal that his cervical spine condition had also worsened. His last VA examinations for these conditions were in August 2012. The Board concludes that due to the possibility these conditions have worsened since that time, new examinations should be provided for the Veteran. Regarding the Veteran's sleep apnea claim, the Board notes that he submitted a June 2007 sleep study record from Emory Healthcare which indicated the Veteran possessed mild sleep apnea. He competently testified at his Board hearing that he began having sleep trouble while on active duty. To date, he has not been given a VA examination for this condition. As such, he should be afforded one upon remand. Finally, following the August 2012 rating decision, the Veteran submitted a timely Notice of Disagreement (NOD) in November 2013. This NOD included his disagreement with the effective date assigned for his grants of service connection for PFB and allergic rhinitis. To date, a Statement of the Case has not been issued concerning these two issues. While a May 2015 Statement of the Case did include "[e]ntitlement to an evaluation in excess of 10 percent disabling for allergic rhinitis (claimed as allergies), with an earlier effective date," it did not actually consider the earlier effective date issue with respect to either condition. Therefore, the Board must remand these claims, rather than merely referring them. A Statement of the Case must be issued and the Veteran given an opportunity to perfect the appeal of these claims to the Board. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and inquire as to all medical facilities (both VA and private) he received treatment for all conditions on appeal. Ask him to fill out a VA Form 21-4142 for any newly identified private facilities. 2. Then, obtain all outstanding VA treatment records, including those from the Atlanta VAMC and all others identified by the Veteran, and associate them with the claims file. If no such records are available/exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be documented in the claims file and the Veteran notified. 3. Next, if the Veteran submits a new VA Form 21-4142 for a private facility or facilities, make the necessary arrangements to obtain any corresponding records and associate them with the claims file. If no such records are available/exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be documented in the claims file and the Veteran notified. 4. Then, contact the Emory Healthcare facility the Veteran identified in his December 2008 VA Form 21-4142 and make the necessary arrangements to obtain all of his outstanding records in its possession. If no such records are available/exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be documented in the claims file and the Veteran notified. 5. Furnish the Veteran and his representative with a Statement of the Case (SOC) pertaining to the issues of entitlement to an effective date earlier than August 26, 2008 for the grant of service connection for PFB and entitlement to an effective date earlier than August 26, 2008 for the grant of service connection for allergic rhinitis. Also advise him that, upon receipt of this SOC, he still needs to file a substantive appeal (VA Form 9 or equivalent statement) in response to complete the steps necessary to perfect his appeal of these two claims to the Board. If, and only if, he perfects an appeal by the submission of a timely substantive appeal should these claims be returned to the Board for further appellate review. 6. Then schedule the Veteran a VA examination to assess the current severity of his cervical spine condition. The claims folder must be made available to the examiner for review. All indicated studies should be performed. The examiner must specifically comment on any additional limitation of motion that the Veteran experiences during flare ups of pain. Commentary is needed as to ankylosis, weakness, excess fatigability, associated neurological disabilities, and any doctor-prescribed bed rest (i.e., incapacitating episodes). All examination findings should be set forth in the examination report. 7. Schedule the Veteran a VA examination to assess the current severity of his allergic rhinitis condition. The claims folder must be made available to the examiner for review. All indicated studies should be performed. All examination findings should be set forth in the examination report. 8. Next, schedule the Veteran a VA examination for his claimed sleep apnea. The claims folder must be made available to the examiner for review. All indicated studies should be performed. The examiner should review the June 2007 private treatment record indicating the Veteran possessed mild sleep apnea based upon the results of a sleep study. The examiner should then respond to the following: * Is it at least likely as not (50 percent or greater probability) that Veteran's sleep apnea was caused by or is otherwise related to his active duty service, to include any exposure to environmental hazards he may have experience while serving in the Gulf War? * Alternatively, is it at least likely as not (50 percent or greater probability) that Veteran's sleep apnea was caused or aggravated by his service connected degenerative disc disease of the cervical spine? The examiner must provide a detailed rationale for each opinion generated, with citations to the record if necessary. The examiner must note and consider all of the Veteran's lay contentions pertaining to his sleep apnea, including that he first had sleep issues while on active duty. 9. Next, review the completed development to ensure that the remand directives have been accomplished. If there are deficiencies, take corrective action. 10. Then readjudicate these remaining claims in light of this and all other additional evidence. If these remaining claims continue to be denied or are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. 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 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). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).