Citation Nr: 1756466 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-08 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a heart disability. 3. Entitlement to service connection for a skin disorder, to include chloracne. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Brown, Associate Counsel INTRODUCTION The Veteran had active duty in the Army from June 9, 1976, to January 25, 1979, and from January 26, 1979, to July 18, 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2017, the Veteran presented testimony in a videoconference hearing before the undersigned. A copy of the transcript has been associated with the claims folder. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran has asserted that his sleep apnea, heart disability, and skin disorder were incurred during active military service and continue to cause him problems in daily activities. Sleep Apnea and Skin Disorder As noted in the Introduction section above, the Veteran had periods of active service from June 9, 1976, to January 25, 1979, and from January 26, 1979, to July 18, 1984. The November 2012 rating decision and the January 2014 Statement of the Case note, as part of the evidence considered, service treatment records from January 1979 through July 1984. The Veteran was afforded VA examinations for his sleep apnea in September 2012, and for his skin disorder in January 2014. At the time, the examiners stated that the claims file had been reviewed. However, it appears that service treatment records covering the entire active service period were added to the file in April 2015 after the VA examinations. It is not clear whether the VA examiners rendered opinions which considered all of the Veteran's service treatment records. Further, the Veteran presented lay testimony regarding both his sleep apnea and his skin disorder during his April 2017 Board hearing which has not been considered by the examiners. On remand, the Veteran should be afforded new examinations. Heart Disability The Veteran's service treatment records do not show any indication of a heart condition. During his April 2017 Board hearing, the Veteran stated that he went to a couple of military hospitals while in service for heart issues, and was given medication. In a July 2012 statement, the Veteran asserted that he had an irregular heart beat while in service which should have been noted in his service treatment records. In September 2008, the Veteran was diagnosed with severe triple-vessel coronary artery disease and unstable angina. On remand, the Veteran should be afforded an examination to determine the nature and etiology of any current heart disability. On remand, any outstanding medical records should be obtained. The file does not contain records for the military hospitals the Veteran went to during service for his heart issues, nor does it contain records for any heart treatment or diagnosis while in service. During his April 2017 Board hearing, the Veteran stated that he was told that he had a serious problem with his heart in 1985 at the Memphis VA. These records are missing from the file. During this hearing, the Veteran also indicated that he was treated by a heart specialist at St. Dominique University in Jackson, Mississippi. There are no medical records for this treatment associated with the file. Additionally, the record indicates that the Veteran received Social Security Disability benefits in the past. In a March 2001 VA treatment record, the Veteran reported receiving monthly benefits of $671.00. Therefore, on remand, the AOJ must obtain all available Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2) (2017); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based, and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. After receiving the necessary authorization, obtain and associate with the claims file all of the Veteran's relevant outstanding private treatment records, to specifically include those listed herein. If after making such a request, a negative response is received, this must be documented in the claims file and the Veteran must be properly informed. 3. Obtain and associate with the claims file all outstanding VA Medical Center (VAMC) records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 4. The AOJ should ensure all available service treatment records from the Veteran's military service have been obtained, to include any treatment at military hospitals. All efforts to obtain additional evidence must be documented in the claims file and the Veteran must be properly informed of the status of the request. 5. After any additional evidence is associated with the claims file, provide an examination and opinion to determine the nature and etiology of any current sleep disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements, to include those during the April 2017 Board hearing. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner should render an opinion as to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's current sleep disorder is causally or etiologically related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 6. Provide an examination and opinion to determine the nature and etiology of any current skin disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements, to include those in the April 2017 Board hearing. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner should render an opinion as to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's current skin disorder is causally or etiologically related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 7. Provide an examination and opinion to determine the nature and etiology of any current heart disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements, to include those during the April 2017 Board hearing. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner should render an opinion as to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's current heart disability is causally or etiologically related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 9. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 2014). _________________________________________________ LANA K. JENG 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) (2017).