Citation Nr: 1806148 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-10 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected bronchitis. 2. Entitlement to service connection for hypertension, to include as secondary to a service-connected psychiatric disability. 3. Entitlement to an increased evaluation for a right second digit hammertoe disability, to include an extension of temporary total disability rating beyond March 31, 2015, pursuant to 38 C.F.R. § 4.30. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from July 1992 to April 1993, and from January 2003 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2014 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the February 2014 rating decision, the RO denied service connection for sleep apnea. In March 2015, the RO granted a temporary total convalescence rating from January 5, 2015, to March 31, 2015, for the right second digit hammertoe disability, and also denied service connection for hypertension. The Board remanded these issues in July 2015 and July 2017, for further evidentiary development. The matter is now before the Board again. The Board notes that the Veteran also originally claimed service connection for migraine headaches. Service connection for this issue was granted by the Board in July 2017. As this action represents a full grant of the claim of entitlement to service connection for migraine headaches, this issue is no longer on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's electronic claims file. With regard to the right second digit hammertoe disability, the Board further notes that during the October 2017 hearing, the Veteran testified that the condition had worsened and indicated her wish for the period of temporary total convalescence rating to be extended to the present time, which is more than two years beyond March 31, 2015. Thus, as the Board finds that the Veteran wishes to pursue both an increased disability rating claim and entitlement to an extension of temporary total disability rating beyond March 31, 2015, for the right second digit hammertoe disability, the issue has been recharacterized as listed on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. A. Sleep Apnea and Hypertension If VA undertakes to provide an examination, the examination must be adequate. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). With respect to the claim for service connection for sleep apnea, to include as secondary to the Veteran's service-connected bronchitis, the Veteran was provided with a VA examination in January 2016; however, the examiner failed to provide any etiological opinion. Specifically, the examiner neither addressed whether the Veteran's sleep apnea was directly related to service, nor whether the condition was caused by the Veteran's service-connected bronchitis. As such, the Board must remand the claim for sleep apnea for a new opinion addressing both direct and secondary service connection. In addition, during the October 2017 hearing, the Veteran testified that she had received an opinion from a VA physician indicating that her sleep apnea was related to her service-connected bronchitis. A copy of this opinion does not appear to be associated with the claims folder. The AOJ should make appropriate efforts to associate this medical record with the claims folder. Turning to the claim for service connection for hypertension, to include as secondary to the Veteran's service-connected psychiatric disability, the Veteran was provided with a VA examination in September 2015. The examiner opined that the Veteran's hypertension was less likely than not proximately due to or the result of the Veteran's service-connected depressive disorder. However, the examiner did not address whether this condition was directly related to service. As such, the Board must also remand the claim for hypertension for a new opinion addressing both direct and secondary service connection. B. Right Second Digit Hammertoe Disability The Veteran's temporary total disability rating for her right second digit hammertoe disability was granted through March 31, 2015. During the October 2017 hearing, the Veteran testified that she was still unable to work due to the disability, asserting that (1) the temporary total disability rating should be extended to the present time, and also, (2) the disability had worsened. The record reflects that the Veteran has not been afforded anther VA examination in connection to her right second digit hammertoe since October 2015. When a claimant alleges that his or her service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Consequently, a new VA examination is warranted for the purpose of determining the current severity of the Veteran's right second digit hammertoe disability. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent VA treatment records, including the positive opinion regarding the Veteran's sleep apnea and bronchitis disabilities as testified during the October 2017 hearing, are associated with the claims folder. In addition, any updated VA records should be obtained and associated with the claims file on remand. If possible, the Veteran should get these records herself to expedite the case. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. This includes, but is not limited to, any medical opinion received regarding the Veteran's sleep apnea condition. See Hearing Transcript, October 12, 2017, page 12. If any record identified cannot be obtained, the Veteran and her representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record herself. 2. The Veteran should be scheduled for a VA examination before an appropriate physician to determine the etiology of her sleep apnea, to include as secondary to her service-connected back bronchitis. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner is requested to respond to the following: (a) Is it as least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was incurred in service, or was caused or aggravated by her active service, to include as secondary to her bronchitis? A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of her hypertension, to include as secondary to her service-connected psychiatric disability. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner is requested to respond to the following: (a) Is it as least as likely as not (50 percent probability or greater) that the Veteran's hypertension was incurred in service, or was caused or aggravated by her active service, to include as secondary to her psychiatric disability? A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of her service-connected hammertoe disability. The examiner should review the claims file and should perform all appropriate tests and diagnostics, including range of motion testing and neurological evaluation. All pertinent symptomatology and findings must be reported in detail. The examiner is asked to report the range of motion measurements in degrees. Range of motion should be tested actively and passively, in weight bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 5. The AOJ should forward the case to the appropriate Veterans Service Center Manager for consideration of entitlement to an extension beyond the initial four-month period of a temporary total rating due to convalescence following right hammertoe surgery in January 2015 under 38 C.F.R. § 4.30(b). 6. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND so as to help avoid future remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and her representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded 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 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 (West 2014). _________________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), 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).