Citation Nr: 1800066 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-11 000A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to an increased rating in excess of 40 percent for residuals of status post-laminectomy and spinal cord surgery (back disability). ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied his claim for service connection for sleep apnea. In his April 2014 Substantive Appeal, the Veteran requested a hearing before a Veterans Law Judge. The Veteran was scheduled for a hearing in April 2017; however, the Veteran's attorney at that time requested a continuance. The Veteran was scheduled for a hearing in June 2017, however, the Veteran did not appear, and he did not request an additional hearing. The May 2017 hearing letters were not returned as undeliverable. Accordingly, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2017). Regarding representation, after certification of the appeal to the Board, in April 2017, the Veteran's attorney submitted a written motion to revoke his Power of Attorney to the Veteran, which was granted by the Board in July 2017. See 38 C.F.R. § 20.608. Accordingly, as the Veteran has not appointed a new representative, the Board recognizes the Veteran as proceeding pro se. Finally, in November 2010, the RO denied the Veteran's claims for increased ratings in excess of 70 percent for PTSD, and in excess of 40 percent for a back disability, and denied the Veteran's claim for a TDIU. The Veteran filed a timely notice of disagreement (NOD) with respect to these issues. In April 2014, the RO granted the Veteran's claim for a TDIU, effective the date of the claim, however, a statement of the case (SOC) has not been issued as to the remaining issues, and it does not appear that additional development action is underway for these claims. These issues are addressed the remand section below. See 38 C.F.R. § 19.9(c), codifying Manlincon v. West, 12 Vet. App. 238 (1999) (in cases before the Board in which a claimant has timely filed a NOD with a determination of the AOJ on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with a SOC, the Board shall remand the claim to the AOJ with instructions to prepare and issue a SOC). During the pendency of the appeal, additional medical records were associated with the record, however, as the appeal is being remanded, the RO will have opportunity to review them in the first instance. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Under the VCAA, VA must provide an examination when there is competent evidence of persistent or recurrent symptoms of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012). The threshold for finding that symptoms of a disability may be associated with service is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, although specific treatment for obstructive sleep apnea or trouble breathing were not noted in the service treatment records, there is some competent lay evidence of manifestations of symptoms related to this disorder during and since service. As there is some competent lay evidence of manifestations of symptoms related to the claimed condition during and since service, A VA examination is warranted to determine whether this disability is related to or had its onset during service. See McLendon, 20 Vet. App. at 83. As the matter is being remanded, updated VA treatment records should also be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Finally, as noted above, the Board notes that the Veteran filed a NOD with a November 2010 rating decision, in which the RO denied the Veteran's claims for increased ratings for PTSD and back disability. The RO has not yet issued a SOC with respect to these claims, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. at 240-41; Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, these matters must be remanded for the issuance of a SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C. § 7105; 38 C.F.R §§ 20.200, 20.201, 20.202. Accordingly, the appeal is REMANDED for the following action: 1. Issue an SOC addressing the issues of entitlement to increased ratings in excess of 70 percent for PTSD and in excess of 40 percent for a back disability. Do not return the issues to the Board unless a timely substantive appeal has been filed in response to the SOC. 2. Obtain any outstanding updated VA treatment records. 3. Schedule the Veteran for a VA examination, with a qualified VA physician, to determine the etiology of his sleep apnea. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed. Based on the examination and review of the record, the examiner should clearly identify all breathing disabilities found, to include sleep apnea, and determine whether it is as least as likely as not (50 percent probability or more) that the disability had its onset during service or was otherwise causally or etiologically related to service. In answering this question, the physician should also address the Veteran's statements as to continuity of any symptoms during and since service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. The absence of evidence of treatment for a particular disorder in service and post-service treatment records cannot, standing alone, serve as the basis for a negative opinion. 4. After completing the above, and any other development deemed necessary, readjudicate the claim. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond. 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. §§ 5109B, 7112. _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).