Citation Nr: 1803917 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-16 756 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for sleep disorder, to include sleep apnea. 2. Entitlement to an initial rating in excess of 50 percent for anxiety disorder. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability(ies). REPRESENTATION Appellant represented by: Amy R. Fochler, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to January 1982. This appeal to the Board of Veterans' Appeals (Board) arose from July 2011, March 2014, and April 2015 rating decisions in which the RO denied service connection for anxiety, sleep disorders, and entitlement to a TDIU, respectively. In April 2012, the Veteran filed a notice of disagreement (NOD) with the denial of service connection for anxiety, the RO issued a statement of the case (SOC) in April 2014. Veteran filed a substantive appeal (via a VA Form 9, Appeals to the Board of Veterans' Appeals) in May 2014. In the March 2014 rating decision, the RO granted service connection for anxiety disorder and assigned an initial 50 percent rating, effective January 30, 2009 (the receipt date of the claim). In April 2014, the Veteran filed an NOD. The RO issued an SOC in April 2015, and the Veteran filed a substantive appeal (via a VA Form 9) in May 2015. With respect to the TDIU claim, the Veteran filed a NOD in May 2015. The RO issued a SOC in December 2016, and the Veteran filed a substantive appeal (via a VA Form 9, Appeals to the Board of Veterans' Appeals) in February 2017. The appeals have been merged. In April 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. . All records have been reviewed. For reasons expressed below, the matters on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional AOJ action in this appeal is warranted. At the outset, the Board notes, as explained below, that further development specifically in connection with the service connection and higher ratings claims on appeal is warranted. As resolution of these claims could well impact the TDIU claim, the claims are inextricably intertwined and should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As it follows that adjudication of the claim for a TDIU, at this juncture, would premature, this matter is being deferred pending completion of the requested development. Regarding the Veteran's claim for service connection for a sleep disorder, to include sleep apnea, medical records reflect that the Veteran has been diagnosed with sleep apnea, and the Veteran reports that he experienced snoring during service that he believes were initial manifestations of his sleep apnea. Alternatively, the Veteran contends that his sleep apnea is secondary to his service-connected anxiety disorder, as this disability has caused him to gain weight due to lack of interest in activities. The Veteran has not been afforded a VA examination, and no medical opinion has been obtained, in connection with this claim. However, in light of the above, the Board finds that a VA examination to obtain appropriate medical etiology opinions -based on full consideration of the Veteran's documented medical history and assertions, and supported by a thorough, clearly-stated rationale-is warranted. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claim for a higher initial rating for anxiety disorder, the Board notes that after the AOJ last adjudicated the claim for an initial rating in excess of 50 percent for anxiety disorder in the April 2015 SOC, the Veteran submitted additional evidence pertinent to claim-to include, in May 2017, the private opinion of Dr. J.S, along with updated VA treatment records. The Veteran waived initial AOJ consideration of such evidence. However, there also appears to be outstanding additional records pertinent to this claim. In this regard, during the April 2017 Board hearing, the Veteran indicated that he last sought VA treatment for his psychiatric disability one year prior. Also, in April 2017 correspondence following the Board hearing, the Veteran's attorney requested that updated treatment records from the Charlotte, Salisbury, Ashville, and Mountain Home VA Medical Centers (VAMCs) be associated with the record. Notably, the claims file only includes VAMC records only dated up to November and December 2015,. In addition, records from the Mountain Home VAMC have not been associated with the record. Notably, records from the Salisbury VAMC notes the Veteran was hospitalized in 2012 due to his psychiatric disability at the Mountain Home VAMC. Accordingly, prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and that the record is complete with respect to all claims on appeal , the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to VA treatment records from Charlotte, Salisbury, and Ashville VAMCS dated since November 2015, and all in- and out-patient treatment records from the Mountain Home VAMC. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly as regards private (non-VA) records), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. Adjudication of these claims should include consideration of all evidence added to the electronic claims file since the last adjudication-to include for the sake of efficiency, the p private opinion of Dr. J.S. submitted in May 2017 (notwithstanding the waiver of initial AOJ consideration of this evidence). Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran from the Charlotte, Salisbury, and Ashville VAMCS dated since November 2015, and all in- and out-patient treatment records from the Mountain Home VAMC. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses from each contacted entity have been associated with the electronic file, arrange for the Veteran to undergo VA examination by an appropriate physician to obtain information as to the nature and etiology of any current sleep disorder(s), to include sleep apnea. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND), must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Following examination of the Veteran, and review of the claims file, for each diagnosed sleep disorder, to include sleep apnea, the physician should provide an opinion, consistent with sound medical judgment, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability: (a) had its onset during service; or is otherwise the result of in-service injury or disease; or, if not, (b) was caused OR is or has been aggravated (worsened beyond natural progression) by service-connected anxiety disorder. If aggravation is found, the examiner should attempt to quantify the extent of aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to aggravation. In addressing the above, the physician must consider and discuss all relevant in service medical evidence and post-service medical evidence. The physician must also consider and discuss all lay assertions-to include the Veteran's competent assertions as to nature, onset, and continuity of symptoms, as well as his contention that his anxiety disorder caused his weight gain, which in turn caused his sleep apnea. Notably, in addressing in-service incurrence, the absence of documented evidence of associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically be acknowledged and considered in formulating opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development action deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence (to particularly include that added to the VBMS/Virtual VA file(s) since the last adjudication, including the private opinion of Dr. J.S. submitted in May 2017, notwithstanding the waiver of initial AOJ consideration), and all legal authority. 8. If any benefit(s) sought on appeal remain(s) denied, furnish the Veteran and his attorney an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).