Citation Nr: 1709300 Decision Date: 03/24/17 Archive Date: 04/07/17 DOCKET NO. 08-27 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for sleep apnea, to include as due to alleged exposure mustard gas and Lewisite, and to include as secondary to a service-connected back disability or a service-connected major depressive disorder. (The issues of (1) entitlement to a rating in excess of 40 percent for residuals of an in-service back injury, (2) entitlement to service connection for bilateral leg tremors (3) entitlement to service connection for balance problems (4) entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only (5) eligibility for specially adapted housing, and, (6) eligibility for a special home adaptation grant, will be addressed by the Board in a separate decision with a different docket number). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and an acquaintance, K.H. ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the United States Army from October 1972 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In June 2013, the Veteran and K.H. testified at a Central Office hearing at the Board's offices in Washington, DC, before the undersigned Veterans Law Judge, for only the sleep apnea issue on appeal. A transcript of that hearing is associated with the Veteran's VBMS file. Previously, in August 2006, the Veteran testified at a separate Central Office hearing at the Board's offices in Washington, DC, before a Veterans Law Judge not involved in the present decision. Specifically, this August 2006 hearing testimony involved six other issues, not on appeal here, which will be addressed by the Board in a separate Board decision with a different docket number. In this regard, the law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2016). Additionally, when two hearings have been held by different VLJs concerning the same issue or issues, the law requires that the Board assign a third VLJ to decide those issues because a proceeding before the Board may be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C.A. § 7102(a) (West 2014); 38 C.F.R. § 19.3 (2016). However, in the present case, a panel decision is not required because the sleep apnea issue on appeal was not a common issue for both the August 2006 and June 2013 Central Office hearings. In other words, both the August 2006 and June 2013 VLJs took testimony on entirely different issues. Finally, in September 2013, the Board remanded the appeal for further development. The case has since been returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Court has clarified that only substantial compliance, and not strict compliance, with the terms of an opinion request are required. D'Aries v. Peake, 22 Vet. App. 97 (2008). First, in the present case, the AOJ did not substantially comply with the Board's remand instructions from the earlier September 2013 Board remand. That is, the September 2013 Board remand instructed the AOJ to secure a VA sleep apnea examination to address the theories of both direct and secondary service connection. Subsequently, a July 2016 VA sleep apnea examiner addressed the theory of direct service connection, but failed to address the theory of secondary service connection. If a medical opinion does not address the secondary aspect of the claim, it is not sufficient for rating purposes. Robinson v. Mansfield, 21 Vet. App. 545 (2008). With regard to secondary service connection, in instruction # 4 of the Board remand, the VA examiner was specifically asked to provide a medical opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the diagnosed sleep apnea .... was "caused or aggravated by any of the Veteran's service connected disabilities." At present, the Veteran is service-connected for residuals of a back injury and major depressive disorder. Of further relevance, in the August 2008 VA Form 9, the Veteran herself alleged that her "severely damaged" service-connected back "caused" her sleep apnea disorder. Thus, a VA addendum opinion is necessary here to address theory of secondary service connection for sleep apnea, in order to comply with the Board's earlier September 2013 remand. If the same July 2016 VA sleep apnea examiner is not available, another qualified VA clinician will provide the addendum opinion. Another VA sleep apnea examination is not necessary unless the VA examiner specifically requests one. Second, the issue of whether the Veteran's sleep apnea disorder is due to exposure to mustard gas or Lewisite during active duty from 1972 to 1975 was not properly developed or adjudicated by the AOJ. The Veteran has contended her current sleep apnea disorder was caused by breathing mustard gas or other chemicals in a gas chamber during her active service. See January 2008 NOD; August 2008 VA Form 9; June 2013 Central Office Hearing. Claims and appeals based on mustard agent or Lewisite exposure received on or after January 19, 2005, must be sent to Muskogee AOJ for centralized processing. See M21-1, Live Manual, Part IV, Subpart ii, Chapter 1, Section F, Topic 2, Blocks a and b (change date August 7, 2015). The Veteran's claim for service connection was received in October 2006, which is after January 19, 2005. Nevertheless, the Muskogee AOJ failed to process the present case. Moreover, if the claims folder is in electronic format, the claims folder should be transferred to the Muskogee AOJ according to the guidelines contained in the M21-1, Live Manual, Part III, Subpart ii, Chapter 5, Section G (change date July 14, 2015). Furthermore, specific development unique to mustard gas claims is described in the M21-1 Live Manual and should be carried out by the Muskogee AOJ, if the Veteran meets the requirements listed in the M21-1: Specifically, sending a Mustard gas development letter to the Veteran; requesting access to the U.S. Department of Defense (DoD) and VA Chemical Biological Warfare Exposure System (Chem-Bio) consolidated database for mustard gas; forwarding requests for verification of full-body exposure to Compensation Service's mustard gas mailbox; and particular development when veterans are not listed in the Chem-Bio database. See M21-1, Live Manual, Part IV, Subpart ii, Chapter 1, Section F, Topic 3, Blocks b, c, d, e (change date August 7, 2015). Notably, there is no indication in the record whether the need for any of this potential development was addressed by the Muskogee AOJ in the instant case. Therefore, a remand for the Muskogee AOJ to perform any necessary development for the mustard gas claim on appeal is required. Accordingly, the case is REMANDED for the following action: 1. The electronic claims folder must be sent to the Muskogee AOJ for centralized processing because the sleep apnea claim is based on exposure to mustard agent or Lewisite. See M21-1, Live Manual, Part IV, Subpart ii, Chapter 1, Section F, Topic 2, Blocks a and b (change date August 7, 2015). Then, the Muskogee AOJ should perform any specific development unique to mustard gas claims as described in the M21-1 Live Manual: (a) In particular, the AOJ should send a mustard gas development letter to the Veteran. (b) Then, if deemed necessary by the facts of the case, the AOJ should perform the following additional development: Request access to the U.S. Department of Defense (DoD) and VA Chemical Biological Warfare Exposure System (Chem-Bio) consolidated database for mustard gas; forward requests for verification of full-body exposure to Compensation Service's mustard gas mailbox; and complete any other development needed if the Veteran is not listed in the Chem-Bio database. See M21-1, Live Manual, Part IV, Subpart ii, Chapter 1, Section F, Topic 3, Blocks b, c, d, e (change date August 7, 2015). 2. After any additional records are associated with the claims file, the AOJ should secure a VA addendum opinion from the July 2016 VA sleep apnea examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the addendum opinion. Only if deemed necessary by the VA sleep apnea examiner is an examination necessary. The entire claims file should be made available to and be reviewed by the VA sleep apnea examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. The VA sleep apnea examiner must directly answer the following questions: (a) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's current sleep apnea disorder is caused by, proximately due to, or the result of her service-connected back disability or service-connected major depressive disorder? (b) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's current sleep apnea disorder is aggravated by or worsened by her service-connected back disability or service-connected major depressive disorder? Both the causation and aggravation facets of secondary service connection should be addressed by the VA examiner. 3. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the service connection issue on appeal for a sleep apnea disorder, on both a direct and secondary basis. If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and her representative an opportunity to respond. The Veteran 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). _________________________________________________ DAVID L. WIGHT 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) (2016).