Citation Nr: 1803304	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  13-32 659	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for obstructive sleep apnea.  

2.  Entitlement to service connection for hypertension.

3.  Entitlement to service connection for hyperlipidemia.

4.  Entitlement to service connection for fatty liver disease.  

5.  Entitlement to an increased evaluation for coronary artery disease evaluated as 30 percent disabling from October 1, 2016.

6.  Entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(s)(1) effective from October 1, 2016.    

7.  Entitlement to a total rating due to unemployability caused by service-connected disabilities.  


REPRESENTATION

Appellant represented by:	Adam R. Luck, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel


INTRODUCTION

The Veteran served on active duty from January 1966 to December 1968 and from July 1969 to May 1976.  He also served in the reserve.

This matter came to the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the RO.  

In May 2017, during the course of the appeal, the Veteran had a video conference with the Veterans Law Judge whose signature appears at the end of this decision.  

The issues of entitlement to service connection for hypertension, entitlement to an increased evaluation for coronary artery disease evaluated as 30 percent disabling from October 1, 2016, entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(s)(1) effective from October 1, 2016, and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders are addressed in the REMAND portion of the decision below.  


FINDINGS OF FACT

1.  On May 30, 2017, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his appeal with respect to the issue of service connection for hyperlipidemia.  

2.  On May 30, 2017, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his appeal with respect to the issue of service connection for fatty liver disease.  

3.  The evidence is in relative equipoise as to whether the Veteran's obstructive sleep apnea is secondary to his service-connected diabetes mellitus.  


CONCLUSIONS OF LAW

1.  The criteria to withdraw the issue of service connection for hyperlipidemia have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria to withdraw the issue of service connection for fatty liver disease have been met.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.

3.  Obstructive sleep apnea is proximately due to or the result of a service connected disease.   38 U.S.C. § 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Hyperlipidemia and Fatty Liver Disease

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  

During his May 2017 video conference with the undersigned the Veteran withdrew his appeal with respect to the issues of entitlement to service connection for hyperlipidemia and fatty liver disease.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review those issues, and they are dismissed.  

Sleep Apnea

During his May 2017 video conference, the Veteran argued that obstructive sleep apnea was proximately due to his service-connected diabetes mellitus.  After carefully considering the claim in light of the record and the applicable law, the Board agrees.

Multiple examinations and opinions from private and VA medical professionals support the Veteran's position, e.g., J. W. E., M.D. in February 2013; D. A., M.D. in February 2016; and a VA examiner in August 2016.  Multiple examinations and opinions from VA examiners are also against the Veteran's position, e.g., those reported in November 2013 and October 2016.  Each of these opinions is supported by supportive rationale.  Together they raise a reasonable doubt as to whether the Veteran's sleep apnea is proximately due to his service-connected diabetes mellitus.  38 C.F.R. § 3.310.  

When there is an approximate balance of evidence which neither proves nor disproves a claim reasonable doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, entitlement to service connection for obstructive sleep apnea is warranted on a secondary basis.  To that extent, the appeal is granted.  



ORDER

The appeals to the issues of entitlement to service connection for hyperlipidemia and fatty liver disease are dismissed.  

Entitlement to service connection for obstructive sleep apnea is granted.  


REMAND

The Veteran contends that hypertension is proximately due or has been aggravated by his service-connected diabetes mellitus, coronary artery disease, and/or obstructive sleep apnea.  To date, the Veteran has not been examined by VA to determine the etiology of his hypertension.  Hence, further development is required. 

The Veteran further contends that he is entitled to an evaluation in excess of 30 percent for coronary artery disease from October 1, 2016, entitled to special monthly compensation pursuant to 38 U.S.C. § 1114(s)(1) effective from October 1, 2016, and that he is unable to work as a result of his service-connected disabilities.  The increased rating and special monthly compensation claims were denied in April 2017, and the claim for a total disability evaluation based on individual unemployability due to service connected disorders is part of the increased rating claim.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As the Veteran in October 2017 filed a timely notice of disagreement a statement of the case must be issued.  Manlincon v. West, 12 Vet. App. 238 (1999).  

In light of the foregoing additional development of the record is warranted.  Accordingly, the case is REMANDED to the Agency of Original Jurisdiction (AOJ) for the following action:

1.  Issue a statement of the case on the issues of entitlement to an evaluation in excess of 30 percent for coronary artery disease from October 1, 2016, entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(s)(1) effective from October 1, 2016, and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders.  If, and only if, the Veteran perfects a timely appeal should these claims be returned to the Board.  

2.  Schedule the Veteran for a VA examination to determine the etiology of his hypertension.  The Veteran's VBMS and Virtual VA files, as well as a copy of this remand must be made available to the examiner for review in conjunction with the examination.  The examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. 

The examiner must render an opinion with respect to the following:  

Is it at least as likely as not (at least a 50/50 chance) that hypertension is proximately due to, or has been aggravated by diabetes mellitus, coronary artery disease, and/or his sleep apnea or by the collective effects of the combination of any or all of those disabilities?  

In order to establish aggravation, there must be an increase in the severity of the Veteran's hypertension that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the hypertension.  Temporary or intermittent flare-ups of the Veteran's hypertension are not sufficient to be considered aggravation unless the underlying pathology, as contrasted to symptoms, is worsened.  

A complete, well-reasoned rationale must be provided for any opinion offered.  If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

3.  The Veteran is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655 (2017). 

4.  A copy of the notice informing the Veteran of the date, time, and location of any examination must be associated with the VBMS file.  In the event that the notice is returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the VBMS file.  

5.  Thereafter undertake any other indicated development.  Then readjudicate the issue of entitlement to service connection for hypertension.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a supplemental statement of the case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. 

By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. 

The Veteran need take no action unless he is notified to do so.  However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the AOJ.  Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. §§ 5109B, 7112 (2012). 



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs