Citation Nr: 1800769 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 09-38 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as due to asbestos exposure and radiation exposure. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and a March 2016 rating decision by the RO in Nashville, Tennessee. The Veteran testified before the undersigned at a February 2011 videoconference hearing. A transcript of that hearing is of record. REMAND The Board finds that further evidentiary development is necessary before the claims of entitlement to service connection for CLL, an increased rating for sleep apnea, and entitlement to TDIU, can be adjudicated. The Veteran contends that diagnosed CLL was caused by service, including exposure to asbestos in service. In November 2016, the Board remanded the claim for further development regarding asbestos exposure. Specifically, the RO was asked to verify the Veteran's claimed asbestos exposure. The Board notes that in correspondence dated in January 2017, the RO attempted to obtain additional information from the Veteran regarding any potential asbestos exposure. No response was received from the Veteran. However, the Veteran's service separation forms show that his military occupational specialties included electronic technician, nuclear power technician, and submarine nuclear propulsion plant supervisor. VA personnel records confirm that the Veteran served aboard submarines during service. As the Veteran served on submarines during service, and his military occupation specialty was consistent with exposure to asbestos, the Board concedes that the Veteran may have been exposed to asbestos during service. In the November 2016 remand, the Board directed the RO to obtain a medical opinion whether diagnosed CLL was related to service, to include asbestos exposure. In an April 2017 VA examination, the examiner opined that there was no objective evidence found of asbestos exposure during service. As the Board has conceded asbestos exposure, an addendum opinion is necessary to determine if there is any relationship between diagnosed CLL and likely asbestos exposure during service. Regarding the claim for service connection for sleep apnea, the Veteran submitted a timely November 2017 notice of disagreement with an October 2017 rating decision that denied service connection for sleep apnea. No statement of the case addressing that claim has been issued. Therefore, the Board is required to remand the claims for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Regarding the claim for entitlement to TDIU, the Board finds that an examination is required which considers to the totality of the Veteran's disability picture considering the combined effect of all of the service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case on the issue of entitlement to service connection for sleep apnea. Notify the Veteran of his appeal rights and that he must submit a timely substantive appeal to receive appellate review of that issue. If a timely substantive appeal is received, return that claim to the Board. 2. Obtain all pertinent VA and private medical records not yet associated with the appellate record, and associate them with the record. 3. Obtain an addendum opinion from the April 2017 VA examiner. The examiner must review the claims file and should note that review in the report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that diagnosed CLL had its onset in service or is etiologically related to service, specifically as due to asbestos exposure during service which has been conceded. The examiner should note that the Board has conceded likely asbestos exposure during service. The rationale for all opinions expressed should be provided. If that examiner is not available, schedule an examination with another qualified examiner. 4. Schedule the Veteran for a VA examination with an appropriate medical doctor examiner. The examiner should describe the symptoms and effects of all of the service-connected disabilities on employment. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent probability or greater) that the service-connected disabilities, either separately or in combination, make the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. If the Veteran is felt capable of work, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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). Department of Veterans Affairs