Citation Nr: 1755993	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  11-22 875	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for residuals of surgery for damaged retinas.

2.  Service connection for hypertension, including due to exposure to herbicides.

3.  Whether new and material evidence has been presented to reopen a claim for service connection for sleep apnea.

4.  Entitlement to service connection for sleep apnea.

5.  Whether new and material evidence has been presented to reopen a claim for service connection for prostate cancer, including due to exposure to herbicides.

6.  Whether new and material evidence has been presented to reopen a claim for service connection for hepatitis C, including due to exposure to herbicides.  

7.  Entitlement to service connection for hepatitis C.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active military service from August 1972 to September 1975.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In April 2012, the Veteran testified before the undersigned Veterans Law Judge via videoconference; a transcript is of record.  

The issues of service connection for residuals of surgery for damaged retinas, hypertension, and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).





FINDINGS OF FACT

1.  The Veteran was not exposed to herbicide agents during service on a direct basis, and exposure cannot be presumed.

2.  Service connection for sleep apnea and prostate cancer was denied in a May 2003 rating decision that was not appealed and became final.

3.  Service connection for hepatitis C was denied in an October 2004 Board decision that was not appealed and became final.

4.  Evidence added to the record since the May 2003 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for sleep apnea and raises the possibility of substantiating the claim.

5.  The evidence related to prostate cancer received since the May 2003 rating decision is new, but fails to show that prostate cancer may be related to service.  

6.  Evidence added to the record since the October 2004 Board decision relates to unestablished facts necessary to substantiate the claim of service connection for hepatitis C and raises the possibility of substantiating the claim.

7.  The Veteran's hepatitis C is not causally or etiologically related to service.


CONCLUSIONS OF LAW

1.  Evidence added to the record since the May 2003 rating decision, denying service connection for sleep apnea, is new and material and the claim for service connection for sleep apnea is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

2.  New and material evidence has not been presented to reopen the claim of entitlement to service connection for prostate cancer.  38 U.S.C. 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

3.  Evidence added to the record since the October 2004 Board decision, denying service connection for hepatitis C, is new and material and the claim for service connection for hepatitis C is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

4.  The criteria for service connection for hepatitis C have not been met.  38 U.S.C. §§ 1110, 1131, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).  Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Id.; 38 U.S.C §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The duty to notify has been met in letters to the Veteran.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187.

With respect to the duty to assist in this case, the Veteran's service treatment records (STRs) and VA treatment records have been obtained and associated with the claims file.  The RO did not afford the Veteran a VA examination based on the current claim of service connection for hepatitis C on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees.  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c).  The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event, injury, or disease.  While the Veteran has been diagnosed with hepatitis C, the record does not indicate the need for a new VA examination.  The duty to assist does not require VA to obtain a medical examination or opinion unless a claim is reopened.  See 38 U.S.C.A. § 5103A(f).  Therefore, an examination is not necessary for the issue relating to prostate cancer.

The Veteran and his representative have not made the Board aware of additional evidence that is needed to substantiate the claim.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.  

II.  Herbicide Exposure

A veteran may be entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during a prescribed period in the 1960s and 1970s, or along the Demilitarized Zone (DMZ) in Korea between 1968 and 1971.  38 C.F.R. § 3.307(a).  "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307.  The presumption requires that a veteran have actually been present on the landmass or the inland waters of Vietnam.  Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97.  

In May 2002 the Veteran wrote that he was exposed to herbicides when his ship  "travelled up and down the Vietnam coast."  Service personnel records show that the Veteran served on the U.S.S. Haleakala.  The Board notes VA's Compensation and Pension Service has identified a number of "blue water" Navy vessels that conducted operations on the inland "brown water" rivers and delta areas of Vietnam and certain other vessel types that operated primarily or exclusively on the inland waterways, which are now subject to the presumption of exposure to herbicides under 38 C.F.R. §§ 3.307 and 3.309.  However, the U.S.S. Haleakala is not a vessel recognized as having conducted "brown water" operations in Vietnam.  The U.S.S. Haleakala only docked in Vietnam in 1969, which was prior to the Veteran's service.  Moreover, the Veteran and his representative have not submitted any evidence supporting that the U.S.S. Haleakala operated in the rivers, delta areas, or inland waterways of Vietnam.  Thus, consideration of exposure under the theory that his ships operated in close proximity to the shoreline, and therefore should be recognized as a "brown water" vessel, is not appropriate to the facts in this case.  Furthermore, service personnel records do not show that the Veteran set foot in Vietnam or was in the inland waters of Vietnam.  Therefore, it cannot be presumed that the Veteran was exposed to herbicide agents based on serving in Vietnam.

The Veteran's representative said at the May 2013 Board hearing that the Veteran believes that Agent Orange was on the U.S.S. Haleakala due to helicopters that landed on the ship.  Herbicide exposure can be presumed for Air Force personnel who had regular contact with C-123 aircraft known to have been used to spray herbicide agents in Vietnam.  38 C.F.R. § 3.307(a)(6)(v).  The Veteran served in the Navy and the record does not show contact with C-123 aircraft known to have been used to spray herbicide agents in Vietnam.  Therefore, it cannot be presumed that the Veteran was exposed to herbicide agents based on contact with equipment, including aircraft.  Furthermore, he did not serve in the DMZ in Korea.  

The record also does not show that the Veteran was exposed to herbicides as contemplated by VA regulations on a direct basis.  There is no evidence other than the statement of the Veteran and his representative that he was exposed to herbicides.  The Board notes that the Veteran is not competent to state that herbicides were used in the locations where he served.  Service connection is not available for any other disability on a presumptive basis due to exposure to herbicides.  See 38 C.F.R. § 3.307(a).

In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis.  Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993).

III.  New and Material Evidence and Service Connection

A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).  New evidence is defined as evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id. 

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).  Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.  38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

To establish service connection for a disability, there must be competent evidence of the following:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent."   However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

A.  Sleep Apnea

The Veteran's claim of entitlement to service connection for sleep apnea was denied by a May 2003 rating decision which is now final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2017).  The Veteran did not file a notice of disagreement with the May 2003 rating decision, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision.  See 38 C.F.R. § 3.156(b); Bond, 659 F.3d at 1367-8; see also Buie, 24 Vet. App. at 251-52.  Thus, the June 2004 rating decision became final based on the evidence then of record.  38 U.S.C §§ 7104, 7105 (2012); 38 C.F.R. § 20.1105 (2017).  

At the time of the May 2003 rating decision, the evidence of record included the STRs and VA treatment records.  The STRs do not show complaints, treatment, or diagnoses related to sleep apnea.  At September 1995 VA treatment the Veteran reported excessive daytime somnolence, and he was diagnosed with probable obstructive sleep apnea.  At August 1999 VA treatment it was noted that the Veteran was diagnosed with obstructive sleep apnea in 1995.  He continued to have poor sleep, and he underwent a uvulectomy the prior year without an improvement in symptoms.  October 1999 VA treatment records indicate that the Veteran had received a CPAP machine and was sleeping better.

The additional evidence added to the record since the May 2003 rating decision includes a July 2010 statement in which he said that he had sleep apnea when he got out of service.  The Veteran testified at the May 2013 VA Board hearing that he got "complaints during service of keeping people up with his snoring."  VA treatment records have continued to show a diagnosis of sleep apnea without an opinion on etiology.

The Board finds the newly submitted documents to be new and material, within the meaning of 38 C.F.R. § 3.156(a), and the service connection claim is reopened.  See Shade, 24 Vet. App. at 117.  Specifically, the new evidences suggests that the Veteran had issues related to his sleep during service that was manifested by snoring.  Such evidence is presumed credible for the purposes of determining whether the evidence is new and material.  Therefore, the additional evidence is both new and material, and the claim for service connection claim for sleep apnea is reopened.  The reopened claim is discussed in the remand section below.




B.  Prostate Cancer

The Veteran's claim of entitlement to service connection for prostate cancer was denied by a May 2003 rating decision which is now final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302.  The Veteran did not file a notice of disagreement with the May 2003 rating decision, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision.  See 38 C.F.R. § 3.156(b); Bond, 659 F.3d at 1367-8; see also Buie, 24 Vet. App. at 251-52.  Thus, the June 2004 rating decision became final based on the evidence then of record.  38 U.S.C §§ 7104, 7105; 38 C.F.R. § 20.1105.  

At the time of the May 2003 rating decision, the evidence of record included the STRs and VA treatment records.  January 2002 VA treatment records state that prostate cancer had been diagnosed two weeks before and that a radical prostatectomy was planned for the following month.  The Veteran wrote in July 2002 that his prostate was removed in February 2002 due to prostate cancer.

The additional evidence added to the record since the May 2003 rating decision includes VA treatment records that indicate a history of prostate cancer.  This newly submitted evidence does not establish or relate to whether the prostate cancer is related to service.  The claim is therefore not reopened.

C.  Hepatitis C

The Veteran's claim of entitlement to service connection for hepatitis C was denied by an October 2004 Board decision which is now final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302.  At the time of the October 2004 Board decision, the evidence of record included the STRs and VA treatment records.  The STRs do not show complaints, treatment, or diagnoses related to hepatitis C but do show a right inguinal herniorrhaphy in 1975 and treatment for venereal diseases.  The Veteran reported multiple sexual partners during service and also noted having undergone hernia surgery during service.  VA treatment records beginning in August 1999 show a diagnosis and treatment of hepatitis C and note that it was diagnosed in the 1980s.  October 1999 VA treatment records state that the Veteran was diagnosed with hepatitis C in 1996, that he had started a treatment program, and that he "felt well."

The Veteran had a VA examination in February 2001 at which he said he was told he had developed hepatitis B in 1983.  He had a history of chronic intravenous drug abuse from 1973 through 1976 and periodic alcohol abuse over the years.  In 1995 the Veteran was found to have a positive serology for hepatitis C.  He had no history of blood transfusions, and the examiner noted that no blood was required at the time of the in-service hernia surgery.  The Veteran had multiple sexual partners during and after service.  He reported "feeling well," did not feel significant symptoms, and was considering an interferon medication when it became available.  The examiner opined that the most important risk factor for the Veteran contracting hepatitis C was intravenous drug abuse, with a 50 percent odds ratio.  The less likely source was sexual exposure during and after service, with a 6.3 percent odds ratio.  The examiner noted the lack of a blood transfusion during the in-service surgery and opined that it had no relationship to the chronic hepatitis C.

The additional evidence added to the record since the October 2004 Board decision includes a July 2010 statement in which the Veteran wrote that he was given blood during his in-service surgery, which is how he believes he contracted hepatitis C.  At April 2014 VA treatment the Veteran said that he does not believe that he has had any blood transfusions.  It was also noted that he has not had any tattoos.

The Veteran now raises a new theory of entitlement, that he should be service connected due to a blood transfusion.  This contention may be characterized as new and material, within the meaning of 38 C.F.R. § 3.156(a), and the service connection claim is reopened.  See Shade, 24 Vet. App. at 117.

Reviewing the reopened claim on the merits, the Board notes that the STRs do not support that the Veteran received a blood transfusion when he had surgery.  Although the Veteran is competent to report that he was told he received a blood transfusion, the Board does not find him to be credible.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, the Veteran's use of intravenous drugs during service constitutes willful misconduct.  See 38 C.F.R. § 3.1(m) (2017).  To the extent to which it is the source of the Veteran's hepatitis C, service connection must be denied.  There is not otherwise competent evidence that the Veteran's hepatitis C is related to service.  In addition, the opinion of the February 2001 VA examiner that it is less likely than not that the Veteran contracted hepatitis C from a sexual encounter during service is probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Because the evidence preponderates against the claim of service connection for hepatitis C, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

New and material evidence has been received, and the Veteran's service connection claim for sleep apnea is reopened.

New and material evidence has not been received to reopen the claim of entitlement to service connection for prostate cancer, and this appeal is denied.

New and material evidence has been received, and the Veteran's service connection claim for hepatitis C is reopened.

Service connection for hepatitis C is denied.


REMAND

The Veteran is seeking service connection for residuals of surgery for damaged retinas.  The STRs show that the Veteran was diagnosed with a refractive error during service and do not show complaints, treatment, or diagnoses related to the retinas.  The Board notes that congenital and refractive errors of the eye are not diseases or injuries for which service connection can be granted.  38 C.F.R. § 3.303(c) (2017).  

September 1995 VA treatment records note that the Veteran had had laser surgery to repair both retinas.  August 1999 VA treatment records note that the Veteran had a history of retinal tears in the 1980s.  The Veteran wrote in July 2010 that he had growths on both of his eyes and that he had to have surgery in 1982 due to holes in his retinas.  He believed this was caused by working on the radar tower during service when the radar was on.  The Veteran testified at the May 2013 Board hearing that his eyes worsened from working on the flight deck during service without proper protection.  The Veteran must therefore be scheduled for a VA examination in order to determine the relationship between the bilateral retina disorder and the in-service exposure to radar and conditions on the flight deck before the claim can be decided on the merits.  See 38 C.F.R. § 3.159(c).

The Veteran is also seeking service connection for hypertension.  The Board notes that although the STRs do not show a diagnosis of hypertension, at his September 1975 discharge examination his blood pressure was 130/90.  August 1999 VA treatment records state that the Veteran was diagnosed with hypertension in 1979.  Given the elevated blood pressure reading at the discharge examination and the diagnosis within four years of service, the Veteran must be scheduled for a VA examination before the claim can be decided on the merits.  See 38 C.F.R. § 3.159(c).

Regarding the reopened claim of service connection for sleep apnea, the Veteran testified at the May 2013 Board hearing that his shipmates complained about him snoring during service.  The Veteran should be scheduled for a VA examination in order for a medical opinion to be obtained regarding the relationship between his in-service snoring and the later diagnosis of sleep apnea.

VA treatment records through August 2015 have been associated with the claims file.  The RO should therefore attempt to obtain all relevant VA treatment records dated from August 2015 to the present while the claim is in remand status.  Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Obtain VA treatment records from August 2015 to the present.

2.  Schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of any diagnosed eye disabilities.  The claims file must be made available to the examiner for review prior to the examination.  All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report.

The examiner must state whether each diagnosed disability is a congenital disability, and if so whether it is capable of getting worse.

The examiner must also state whether each diagnosed disability is a refractive error.

For any diagnosed disabilities that are not refractive errors, are congenital disabilities capable or worsening, or are not refractive errors or congenital disabilities, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the disabilities are related to service.  

The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the bilateral retina disability for which the Veteran had surgery in the early 1980s is related to service, including exposure to radar and working on the flight deck without proper eye protection.

The examiner is advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.  

The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file.  

If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case.  

3.  Schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of hypertension.  The claims file must be made available to the examiner for review prior to the examination.  All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report.

The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was incurred in service or within a year of service or is otherwise related to service.  The examiner should consider the blood pressure reading of 130/90 from the discharge examination and that the Veteran was diagnosed with hypertension within four years of service.

The examiner is advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.  

The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file.  

If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case.

4.  Schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of sleep apnea.  The claims file must be made available to the examiner for review prior to the examination.  All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report.

The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was incurred in service or is otherwise related to service.  The examiner should assume as credible the Veteran's report of his in-service shipmates complaining about his snoring.

The examiner is advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.  

The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file.  

If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case.  

5.  Thereafter, readjudicate the claim of service connection for residuals of surgery for damaged retinas, hypertension, and sleep apnea.  If the benefits sought are not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case (SSOC), provided an opportunity to respond, and the claim should then be returned to the Board as warranted.  

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).


______________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs