Citation Nr: 1613100 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 10-00 118A ) 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 secondary to service-connected disabilities. 2. Entitlement to an evaluation in excess of 30 percent for migraine headaches due to head trauma. 3. Entitlement to an evaluation in excess of 10 percent for syncope (formerly seizure disorder) due to head trauma. 4. Whether new and material evidence has been received to reopen a claim for service connection for degenerative disc disease of the lumbar spine. 5. Whether new and material evidence has been received to reopen a claim for service connection for hypertension. 6. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Jan Dils ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active military service from March 1972 to June 1974. This case came before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that denied service connection for sleep apnea and denied increased ratings for migraine headaches and syncope. In September 2013, the Board remanded the case for further development. While on remand, an August 2014 rating decision found that new and material evidence had not been received to reopen claims for service connection for degenerative disc disease of the lumbar spine and hypertension. In October 2014, the Veteran filed a notice of disagreement to those denials. Then, a January 2015 rating decision found that new and material evidence had not been received to reopen a claim for service connection for posttraumatic stress disorder. In February 2015, the Veteran filed a notice of disagreement to that denial. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the prior remand, the Board requested an examination to determine the nature and etiology of the Veteran's sleep apnea and an examination utilizing the traumatic brain injury (TBI) examination guidelines to fully ascertain the severity of his service-connected migraine headaches and syncope. The Veteran was afforded a VA examination for his sleep apnea in January 2014. He reported that he was having apneic episodes at night and was very sleepy during the day, and so he underwent testing in 2007 and was found to have sleep apnea. The examiner noted that the Veteran was discharged from service in 1974 and diagnosed with sleep apnea in 2007. The examiner then opined that the sleep apnea is not related to service. The examiner also opined that the Veteran's sleep apnea was not caused by his migraines or syncope as neither is a known cause of sleep apnea, and that his sleep apnea would not have been aggravated by his migraines or syncope as the conditions are not related. While the examiner's opinion on whether the Veteran's sleep apnea was caused or aggravated by his service-connected disabilities is adequate, the opinion on whether the sleep apnea is related to active service warrants further discussion. The examiner did not address the Veteran's assertion that his sleep apnea is due to his in-service head trauma. In that regard, the Board observes that the Veteran should have been afforded a TBI examination. Thus, he should be afforded one on remand. While a TBI examination was specifically requested to evaluate the Veteran's service-connected migraine headaches and syncope, one was not provided. Thus, the Veteran should be afforded a TBI examination, in compliance with the prior remand. Stegall v. West, 11 Vet. App. 268 (1998). Prior to the examination, any outstanding medical records should be obtained. The record contains VA treatment notes through April 2014. Thus, any treatment notes since that time should be obtained. As noted in the introduction, an August 2014 rating decision found that new and material evidence had not been received to reopen claims for service connection for degenerative disc disease of the lumbar spine and hypertension, and a January 2015 rating decision found that new and material evidence had not been received to reopen a claim for service connection for posttraumatic stress disorder. The Veteran filed a timely notice of disagreement to all three denials. Thus, the Board is required to remand the issues for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case on the issues of whether new and material evidence has been received to reopen a claim for service connection for degenerative disc disease of the lumbar spine, whether new and material evidence has been received to reopen a claim for service connection for hypertension, and whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder. Advise the Veteran that a timely substantive appeal is necessary to perfect the appeal to the Board. If the appeal is perfected, then return the case to the Board. 2. Obtain any VA treatment records since April 2014. 3. Then, schedule the Veteran for a VA TBI examination to ascertain the nature and etiology of his sleep apnea and severity of his service-connected migraine headaches and syncope. Any necessary testing should be accomplished. The examiner should review the claims folder and note that review in the report. A rationale for all opinions should be provided. The examiner should address the following: (a) State whether it is at least as likely as not (50 percent or greater probability) the Veteran's sleep apnea had its onset during active service or within one year thereafter, or is otherwise causally related to such service, to include the head trauma while boxing. (b) With regard to the Veteran's service-connected migraine headaches and syncope, set forth all objective findings, particularly the current severity of symptoms. State whether the Veteran's migraine headaches and syncope represent residuals of a TBI and, if so, the degree to which the TBI disability is manifested by facets of cognitive impairment including to memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. 4. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). _________________________________________________ THOMAS H. O'SHAY 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).