Citation Nr: 18152386 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-43 308 DATE: November 21, 2018 REMANDED Entitlement to an evaluation in excess of 0 percent for traumatic brain injury (TBI) is remanded. Entitlement to an evaluation in excess of 0 percent for residuals of bilateral hand burns is remanded. Entitlement to an evaluation in excess of 0 percent for residuals of a facial burn is remanded. Entitlement to an evaluation in excess of 0 percent for Reynaud’s disease is remanded. Entitlement to service connection for central and obstructive sleep apnea, to include as secondary to service-connected PTSD or TBI, is remanded. Entitlement to an effective date prior to July 13, 2008 for the grant of service connection for residuals of bilateral hand burns is remanded. Entitlement to an effective date prior to July 13, 2008 for the grant of service connection for residuals of a facial burn is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1998 to July 2008 and from October 2009 to November 2010. A December 2008 rating decision granted service connection for the Veteran’s residuals of a facial burn and bilateral hand burns. In November 2012, the Veteran’s attorney filed a claim disagreeing with the disability ratings and effective dates assigned for bilateral hand burns and facial burns. In a March 2013 letter, the Veteran reported he had TBI due to service. A May 2013 rating decision granted TBI. A July 2013 rating decision granted service-connection for Reynaud’s disease associated with residuals of a facial burn and denied an increased rating for residuals of burns, both hands and facial. The Veteran filed a claim for service connection for sleep apnea and for an increased rating for TBI in November 2013. A rating decision dated in May 2014 denied the claim for increased ratings for burn residuals and TBI and entitlement to service connection for sleep apnea. The Veteran’s October 2014 Notice of Disagreement reports that the Veteran disagreed with the assigned effective dates for the grant of service connection for the residual burns of the face and hands, the disability rating for TBI, and the denial of service connection for sleep apnea. The May 2016 Statement of the Case (SOC) addressed the issues of the rating for residuals of bilateral hand and facial burns, the rating for TBI, and service connection for sleep apnea. A June 2016 Report of General Information states the Veteran had moved to a new address and requested the SOC be sent to his current address. The Veteran filed a VA Form 9 dated in early July 2016. The RO resent the SOC, dated in late July 2016. The Veteran resubmitted his July 2016 VA Form 9 in early September 2016. On his July 2016 VA Form 9, the Veteran reported that his claim concerned nerve damage, pain, and sensitivity caused by burns as opposed to scarring, which had been the issue addressed by the SOC. The medical evidence of record, including April 2013 and June 2013 VA examinations, note frequent neuropathic symptoms of burning pain along with pins and needles in the relevant areas. During the course of the appeal, the Veteran was granted service connection for Reynaud’s disease associated with residual burns. In determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of Clemons, the Veteran’s claim includes the issue of the increased rating for Reynaud’s disease. The Veteran’s descriptions of pain and taking medication suggest worsened symptoms since the last relevant VA examination and the claim is therefore remanded for a new examination. The Veteran submitted citations of peer-reviewed medical literature on his July 2016 VA Form 9 regarding a link between sleep apnea, PTSD, and TBI. An examiner should consider aggravation or a causal relationship between sleep apnea and the Veteran’s service-connected PTSD or TBI, including the medical literature submitted by the Veteran, and the Veteran’s history. The Veteran, on his July 2016 VA Form 9, also reported TBI symptoms, such as memory loss and concentration problems, including having been proscribed medications by the VA, and neurobehavioral effects. These statements indicate symptoms of TBI that were not noted on the last examination, should be considered by an examiner, and could reflect worsening. The RO has not yet issued statements of the case regarding the effective date claims. The Veteran must be issued a SOC regarding this matter. Manlicon v. West, 12 Vet. App. 238 (1999). An attorney previously represented the Veteran. According to an August 2016 letter submitted by an employee of the attorney’s law firm, the attorney withdrew representation, effective November 2014. A January 2016 VA Form 21-22 shows the Veteran is currently represented by the Florida state veterans service organization as reflected in the heading of this remand. The July 2016 SOC was sent to the private attorney. Any SOC/SSOC must be sent to the state representative and not to the private attorney. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of Reynaud’s disease. The examiner must review the claims file and provide a complete rationale for any opinion made or conclusion reached. Any indicated studies should be performed and all pertinent pathology found on examination should be noted on the evaluation report. The examiner should consider the Veteran’s lay statements of pain, sensitivity, and nerve damage in his hands and head. 2. Schedule the Veteran for a VA examination regarding the nature and etiology of sleep apnea. The examiner must review the claims file and provide a complete rationale for any opinion made or conclusion reached. The examiner should consider any medical articles submitted by the Veteran, including the Google Scholar articles listed on the September 2016 VA Form 9. The examiner should also consider the Veteran’s medical history. The examiner must opine whether it is at least as likely as not that the disability was (1) incurred in or is otherwise related to service or (2) if sleep apnea has been caused or aggravated by service-connected PTSD, TBI, or any other service-connected disability. 3. Schedule the Veteran for an examination to determine the current severity of his TBI residuals. The examiner must review the claims file and provide a complete rationale for any opinion made or conclusion reached. Any indicated studies should be performed and all pertinent pathology found on examination should be noted on the evaluation report. The examiner should consider the Veteran’s statements, including memory loss and concentration difficulty and neurobehavioral effects, such as those listed on his September 2016 VA Form 9. 4. Issue a SOC addressing the claim of an effective date prior to July 13, 2008 for residuals of bilateral hand burns and facial burns to the Veteran and to the Florida Department of Veterans Affairs (or any subsequently authorized representative). The Veteran and the representative should be given the appropriate opportunity to respond to the SOC. Readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and the Florida Department of Veterans Affairs (or any subsequently authorized agent) a Supplemental Statement of the Case and provide an opportunity to submit written or other argument in response before the matter is returned to the Board for further appellate consideration. MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED