Citation Nr: 1805170 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-30 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a lower back condition. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Adam Neidenberg, Attorney ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran had active military service from August 1980 to October 1983. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. On his June 2016 VA Form 9, substantive appeal, the Veteran requested a hearing before the Board. However, in letters submitted in April 2017 and June 2017, the Veteran's attorney stated that the Veteran wished to cancel his hearing and not reschedule it. Accordingly, the Veteran's request for a hearing is deemed withdrawn. In July 2017, the Board remanded the issues of entitlement to service connection for a lower back condition and entitlement to a TDIU for further development. In September 2017, the Veteran filed a timely notice of disagreement (NOD) with a July 2017 rating decision that denied service connection for sleep apnea. As no statement of the case (SOC) has been issued with respect to this claim, the Board must take jurisdiction of it for the limited purpose of remanding it to the Agency of Original Jurisdiction (AOJ) to direct the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. It has not been shown that the Veteran's lower back condition had its onset in service, was manifested within the first postservice year, or is otherwise related to his military service. 2. The Veteran's degenerative joint disease of the left and right ankles, which are his only service-connected disabilities, do not prevent him from securing or following a substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back condition are not met. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 307, 309 (2017). 2. The criteria for the assignment of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided and the Veteran has not alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify has been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All pertinent and relevant records have been obtained, to the extent available. The Veteran was also provided with adequate VA examinations. Finally, neither the Veteran nor his attorney has raised any other issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument). For these reasons, the Board concludes that VA has fulfilled its duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Factual Background, Legal Criteria, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal. A. Service Connection for a Lower Back Condition Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 9 (2017). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2017). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2017). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker, 708 F.3d at 1337. Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for a lower back condition. The Veteran contends that his back injury occurred when he had to carry heavy pounds of weight, such as M60s and M90s, on his back for miles as a foot soldier during his time in service. See July 2014 Notice of Disagreement. Service treatment records are silent for any signs, symptoms, complaints, or diagnosis of a back condition. The Veteran's spine was clinically evaluated as normal on his September 1983 Report of Medical Examination for separation, and although notations were made regarding his ankles, none were made as to his lower back. On the Veteran's September 1983 Report of Medical History for separation, the Veteran reported that his present health was "good" and also indicated that he did not have nor had he ever had recurrent back pain, arthritis, or any bone, joint, or other deformity. Postservice VA and private treatment records shows that the Veteran has a current lower back condition. In an October 2012 VA treatment record, the Veteran reported that he had pain in his hips, leg, and low back, which began within the last two years. In a September 2013 VA treatment record, it was also noted that the Veteran had back pain. In a December 2013 VA treatment record the Veteran reported having pain his feet and legs, but he did not report having any pain in his back. He attributed the pain in his feet and legs to carrying heavy items while in active duty. In April 2014, the Veteran reported that the pain in his lower back began within the last three to four years. He also reported that his back pain came on slowly over the past several years. In February 2016, the Veteran was diagnosed with lumbar spondylosis. He reported that he hurt his back while in the military. In April 2015, the Veteran had an MRI of his back performed, which revealed very mild/early changes of degenerative disc disease predominantly L3-4 through L5-S1. In March 2014, the Veteran submitted a letter from his friend and former military comrade, J.M. J.M. stated that he served with the Veteran in the military and knew of his back problems at that time. J.M stated that the Veteran's disability had continued after service and worsened. In September 2017, the Veteran was afforded a VA examination and was diagnosed with degenerative arthritis of the spine or degenerative disc disease of the lumbar spine. The Veteran stated that the onset of his back condition occurred when he was about 30 years old. He reported that he did not have a particular injury to his back, but it came on over time. Based on the foregoing evidence, it is not shown that the Veteran's lower back condition had its onset in service or that lower back arthritis manifested compensable degree within one year after service; it is also not shown that the Veteran has had a continuity of lower back symptoms since service. In this regard, the Board acknowledges the Veteran's and his friend's lay statements that the Veteran had back problems while in service and that it became worse over the years. The Veteran and his friend are competent to give evidence about observable symptoms. Layno v Brown, 6 Vet. App. 465 (1994). However, findings of competency and credibility are two distinct matters, and after careful review of the evidence, the Board finds that the statements that the Veteran has had continuous back problems since service to be not credible. Significantly, the Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnosis of a back condition. On his September 1983 Report of Medical History for separation, the Veteran described his health as being "good." He also indicated that he did not have nor had he ever have any symptoms related to the lower back, including recurrent back pain. Also, the Veteran's postservice treatment records show that he has reported various onset dates for his current lower back pain, all of which have taken place after his separation from service. For example, in an October 2012 VA treatment record, the Veteran reported that his back pain began about two years earlier. In April 2014, he reported that his back pain "came on slowly over the past several years." Also, at the September 2017 VA examination, the Veteran reported that his back pain began when he was 30 years old, and he was not able to report a particular injury to the back. The United States Court of Appeals for Veterans Claims (Court) has held that lay statements made in connection with medical treatment may be afforded greater probative value than later statements made with self-interest in mind. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In light of the inconsistent statements from the Veteran as to the onset of his lower back condition, the Board finds that his assertions and those of his friend that he has had back pain continuously since service are not credible. As such, service connection is not warranted on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112) or through a showing of continuity of symptomatology. As to whether the Veteran's lower back condition is otherwise related to service, the Board weighs the nexus opinions to determine whether such relationship exists. In July 2017, the Veteran submitted a letter from his private physician, Dr. T.R.C., dated the same month. In the July 2017 letter, Dr. T.R.C. stated she was a board-certified physician in Internal Medicine with 11 years of experience in her field. To prepare her letter, she reviewed the Veteran's claims file, to include medical and service records dating from 1980 to 2016, although she did not examine the Veteran. The private physician cited to a medical article to support her conclusions. After reviewing the record, Dr. T.R.C. confirmed that the Veteran had a current diagnosis of lumbar spondylosis, a form of degenerative joint disease of the spine. She then noted that the Veteran was initially diagnosed with lumbosacral strain, with physical exams on multiple occasions demonstrating paraspinal muscle spasm, and x-rays showing the loss of normal lumbar lordosis, also indicating muscle spasm. She explained that while acute lumbosacral strain could be related to a specific injury, chronic lumbosacral strain like the Veteran had suffered was usually indicative of an underlying abnormal alignment of the spine, which placed unequal stress on the paraspinal muscles. This caused the chronic spasm that was well-documented in the Veteran's postservice medical records. More recent clinical evaluations had confirmed the suspected diagnosis of lumbar degenerative disc disease, specifically lumbar spondylosis. Dr. T.R.C. further explained that an MRI, performed in April 2015, demonstrated mild-to-moderate facet joint hypertrophy and mild changes of degenerative disc disease with right neural foraminal narrowing at L5-S1. The imaging findings correlated with his history of lower back pain radiating into his buttocks and upper thighs and his clinical exam findings of decreased range of motion of the spine and a positive straight leg raise. She stated that the Veteran's symptoms of pain and stiffness of the lower back since 1982 were entirely consistent with his later diagnosis of lumbar spondylosis, and explained that the diagnosis was often delayed due to its slowly progressive course and lack of early imaging findings. Dr. T.R.C. opined that given that the Veteran first developed symptoms of lumbosacral strain after an injury while on active duty, and that those symptoms had progressed as was the usual natural history of degenerative disc disease of the lumbar spine, it was at least as likely as not that the Veteran's lumbar spondylosis was related to his military service. In September 2017, the Veteran was afforded a VA examination. The VA examiner reviewed the Veteran's claims file and conducted an in-person examination of the Veteran. The VA examiner diagnosed degenerative arthritis or degenerative disc disease of the lumbar spine, and opined that these diagnoses were less likely as not (less than 50 percent or greater probability) related to the Veteran's in-service activities (and specifically, his service as a foot soldier who had to carry pounds of weight on his back for miles). The VA examiner noted her disagreement with Dr. T.R.C.'s July 2017 opinion. She explained that her review of the record did not find objective evidence in the service treatment records for a complaint or diagnosis of a lumbar spine condition. The Veteran checked "no" to chronic lumbar spine condition on the separation Report of Medical History, and his spine exam was checked as "normal" on the separation exam. The record was then silent from 1983 to 2012 (29 years). The VA examiner stated that the first known objective evidence of back pain was in 2013, 30 years after separation from active duty. The record also provided objective evidence for risk factors which, according to current medical literature, at least as likely as not contributed to or caused the degeneration of the lumbar spine, including many years of morbid obesity and possible intercurrent injury when the Veteran's semi-truck overturned in 2012. The VA examiner also considered the Veteran's claim that his back condition was related to his service as a foot soldier who had to carry pounds of weight on his back for miles. The VA examiner stated that the Veteran's service treatment records did not provide objective evidence for complaint of a back condition in active duty nor did the record provide evidence for a chronic back condition for 30 years after separation from active duty service. Thus, the objective evidence went against the Veteran's claim that his strenuous foot soldier activities contributed to a lumbar spine condition, including degeneration of his lumbar spine. The VA examiner also stated that even if was considered that the Veteran had low back complaints and did not report them, there was no objective evidence for a chronic back condition for about 30 years after separation from active duty. The VA examiner noted the report by Dr. T.R.C that the Veteran was initially diagnosed with lumbosacral strain and that x-rays showed the loss of normal lumbar lordosis, which also indicated muscle spasm. The VA examiner stated that she did not find an x-ray report indicating these findings, nor was the initial diagnosis of lumbosacral strain found in the record. She opined that given the lack of objective evidence for a chronic back condition, based on review of current medical literature, the strain was likely (50 percent or greater probability) acute (short term) and not chronic. Regarding Dr. T.R.C.'s opinion that chronic lumbar strain led to degeneration of the spine, the VA examiner could find no objective evidence in the record to support Dr. T.R.C.'s opinion that the Veteran's lumbar strain occurred due to injury in active duty. Additionally, the VA examiner reviewed the medical article referenced in Dr. T.R.C.'s opinion. She concluded that the article did not provide objective evidence to support the supposition that lumbar strain caused or could lead to degeneration of the spine. The article was a clinical guideline developed after a literature search of randomized, controlled studies from 1966 to 2006 of adults with lower back pain. The guideline provided recommendations for evaluation of low back pain and its treatment. The VA examiner further noted that Dr. T.R.C. had opined that the Veteran was initially diagnosed with lumbosacral strain and that the degeneration of the spine was slowly progressive, thus leading the reader to assume that the degeneration could have been caused by the strain. The VA examiner pointed out, however, that there was no objective evidence in the record for a strain in active duty or for 30 years after separation from active duty. The objective evidence, including the medical article she had cited to, went against Dr. T.R.C.'s opinion and rationale. In evaluating the foregoing medical opinions, the Board acknowledges that both the September 2017 VA examiner and Dr. T.R.C. reviewed the Veteran's pertinent treatment records and considered his lay statements regarding onset and symptomatology of his lower back condition. However, in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008), the Court held that when evaluating the probative value of a medical opinion, the relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. Here, Dr. .T.R.C.'s favorable opinion is premised on a finding that the Veteran injured his lower back in service and continued to experience symptoms related to that injury after service. However, as discussed above, it is not shown that the Veteran injured his lower back in service. His assertions that he has suffered continuous lower back symptoms since service have also been found not credible. Accordingly, it cannot be said that Dr. T.R.C.'s opinion was based on an accurate factual and medical background, and thus has no probative weight. Instead, the Board assigns greater weight and probative value to the September 2017 VA medical opinion as it considered the entire evidence of record, including the opinion by Dr. T.R.C. and thoroughly explained her reasons for disagreeing with that opinion. It also explained why Dr. T.R.C.'s conclusions were inaccurate. Additionally, the VA examiner fully supported her conclusion that the Veteran's lower back condition was less likely than not related to his service with sufficient rationale. As for the statements from the Veteran relating his current lower back condition to his military service, while he may be competent to testify as to the experiences he encountered in service as well as the symptoms he now experiences (such as aches and pain in the back), it is beyond his competence as a layperson to opine regarding medical etiology. The Veteran lacks the training to opine whether a lower back condition may (in the absence of evidence of continuity, as here) be related to remote incidences in service; this is a question that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). In light of the foregoing, the preponderance of the evidence is against a finding of a nexus between the Veteran's lower back condition and his military service. Accordingly, the appeal seeking service connection for a lower back condition must be denied. B. TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "Marginal employment shall not be considered substantially gainful employment." The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2017). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b) (2017); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Currently, the Veteran is only service-connected for degenerative joint disease of the right ankle and degenerative joint disease of the left ankle each rated at 10 percent from January 11, 2013 under 38 C.F.R. § 4.71(a), Diagnostic Codes 5003-5271. The Veteran does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). As such, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. Following a review of the evidence of record, the Board finds that referral of the TDIU claim to the Director of VA Compensation Service for extraschedular consideration is not warranted. In particular, the evidence of record shows that the Veteran is not unable to secure or follow a substantially gainful occupation due to his service-connected bilateral ankle condition alone. In March 2014, the Veteran submitted a VA Form 21-8940 requesting compensation based on unemployability (TDIU). The Veteran asserted that his back pain, feet pain, sleep apnea, gout, legs, anxiety disorder, etc., prevented him from securing or following substantially gainful employment. However, the Veteran is not service-connected any of the aforementioned disabilities; he is only service-connected for the ankles. Social Security Administration (SSA) records show that the Veteran was determined to be disabled as of April 2015, as a result of his back disorder (primary diagnosis) and affective/mood disorder (secondary diagnosis). The Veteran is not service-connected for either of those disabilities, and it is not shown that the Veteran was found disabled by SSA as a result of his service-connected bilateral ankle disabilities. In March 2014, the Veteran was afforded a VA examination for his ankles. The Veteran was diagnosed with degenerative joint disease of the bilateral ankles. At the time of the examination, the Veteran reported that he was not employed and could not work due to his bilateral ankles. He had problems with walking and repetitive bending and stooping. The Veteran had pain with walking up and down the stairs. The VA examiner concluded, however, that the Veteran's condition alone did not affect his ability to do sedentary work. The Board acknowledges the Veteran's lay statements about not being able to work due to his bilateral ankle condition. Although the Veteran is competent to report signs or symptoms of a disability, the Board accords greater weight to the medical opinion regarding the functional impairment caused by the Veteran's bilateral ankle condition due to the VA examiner's objective findings which are supported by the other evidence in the record as well as her knowledge and experience in the field. Therefore, the evidence refutes the Veteran's statements that he is unemployable due to his service-connected disabilities. As such, the Board finds that the Veteran is not unable to secure and follow a substantially gainful occupation by reason of his service-connected bilateral ankle condition. The preponderance of the evidence is against a finding that the Veteran is unemployable. Accordingly, the Board declines to remand the claim for TDIU for referral to the Director for consideration of TDIU on an extraschedular basis and the claim of entitlement to a TDIU is denied. ORDER Service connection for a lower back condition is denied. Entitlement to a TDIU is denied. REMAND According to 38 U.S.C. § 7105(a), an appeal to the Board must be initiated by an NOD and completed by a substantive appeal after an SOC is furnished to the appellant. In essence, the following sequence is required: There must be a decision by the AOJ, the claimant must express timely disagreement with the decision (by filing an NOD within one year of the date of mailing of notice of the AOJ decision), VA must respond by explaining the basis of the decision to the claimant (in the form of a SOC), and finally, the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200 , 20.201, 20.202, 20.203 (2017). In September 2017, the Veteran filed an NOD with a July 2017 rating decision that denied service connection for sleep apnea. Although the Veteran's NOD was timely filed, the AOJ has not issued an SOC. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), when this occurs, the Board must remand the case and instruct the AOJ that the issue remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.9(c) (2017). Therefore, the claim for entitlement to service connection for sleep apnea is remanded for the issuance of an SOC. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Review the file and issue an appropriate SOC addressing the Veteran's claim for service connection for sleep apnea. The Veteran and his attorney must be advised of the time limit for filing a substantive appeal, and that, in order for the Board to have jurisdiction in that matter, he must submit a timely substantive appeal. The claims file should be returned to the Board for further appellate consideration only if he timely perfects the appeal. 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. §§ 5109B, 7112 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs