Citation Nr: 1806956 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 16-63 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a low back condition. 2. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a lung condition, to include as secondary to asbestos exposure. 3. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for dermatitis. 4. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for itching asbestosis. 5. Entitlement to service connection for a heart condition. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for post-traumatic stress disorder (PTSD) due to personal assault. 8. Entitlement to service connection for a headache condition, to include as secondary to PTSD. 9. Entitlement to service connection for a sleep disorder, to include as secondary to PTSD. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1997 to February 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal of April 2014 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In the April 2014 rating decision, the RO declined to reopen the Veteran's claims for service connection for low back condition, a lung condition, dermatitis and itching asbestosis. The RO also denied the claim for service connection for PTSD. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of service connection for tinnitus, PTSD, headache condition and a sleep disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a November 2006 rating decision, the RO denied the claim for a low back condition, finding there was no evidence demonstrated by the service treatment records of a low back condition subject to service connection. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 2. No additional evidence has been associated with the record since the November 2006 rating decision that relates to an unestablished fact that is necessary to substantiate the claim of service connection for a low back disorder. 3. In a November 2006 rating decision, the RO denied the claim for a lung condition, to include as secondary to asbestos exposure, finding there was no evidence to support the claim that the Veteran's current lung condition was connected to his active service or that he was exposed to asbestos in service. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 4. No additional evidence has been associated with the record since the November 2006 rating decision that relates to an unestablished fact that is necessary to substantiate the claim of service connection for a lung condition. 5. In a November 2006 rating decision, the RO denied the claim for dermatitis, finding there was no evidence demonstrated by the service treatment records of dermatitis in service. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 6. No additional evidence has been associated with the record since the November 2006 rating decision that relates to an unestablished fact that is necessary to substantiate the claim of service connection for dermatitis. 7. In a November 2006 rating decision, the RO denied the claim for itching asbestosis, claimed as skin lesions, finding there was no evidence demonstrated by the service treatment records of skin lesions in service. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 8. No additional evidence has been associated with the record since the November 2006 rating decision that relates to an unestablished fact that is necessary to substantiate the claim of service connection for itching asbestosis. 9. The Veteran's heart condition was not a result of an injury or disease incurred in or otherwise related to active service. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim for service connection for a low back disorder has not been received. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (a) (2017). 2. New and material evidence to reopen the claim for service connection for a lung condition, to include as secondary to asbestos exposure, has not been received. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (a) (2017). 3. New and material evidence to reopen the claim for service connection for dermatitis has not been received. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (a) (2017). 4. New and material evidence to reopen the claim for service connection for itching asbestosis has not been received. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (a) (2017). 5. The criteria for service connection for a heart condition are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all of the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2015); 38 C.F.R. §§ 3.159, 3.326 (2017). For the service connection issues, review of the claims folder reveals compliance with the VCAA. 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters sent from the RO to the Veteran in August 2006 and January 2014. These letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his increased rating claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the VCAA letters advised the Veteran of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The January 2014 letter also notified the Veteran of the criteria for reopening previously denied claims, the criteria for establishing service connection, and information concerning why the claims were previously denied. The Board finds that VA's duty to notify has been met. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claims, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claims. 38 C.F.R. § 3.159 (c)(4). For applications to reopen finally adjudicated claims, VA will provide a medical examination or obtain an opinion only if new and material evidence is presented or secured. Id. Thus, the Veteran has received all required notices in this case for his service connection claims, such that there is no error in the content of VCAA notice. See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With regard to the timing of VCAA notice, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued the January 2014 VCAA notice prior to the rating decision on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), VA treatment records and military personnel records. For his part, the Veteran has submitted post service treatment records and personal statements. The Veteran was not provided with an examination with respect the claim decided herein. However, the Board does not find it necessary to remand for a VA examination and medical nexus opinion for a heart condition under McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed below, the evidence does not demonstrate in-service exposure to asbestos. The Board finds the Veteran's assertions in this regard to be conclusory, generalized lay statements that suggest an etiological nexus between the disability and his active duty service. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, the Board finds these contentions do not rise to the level of the indication of an association. 38 U.S.C.A. § 5103A (West 2015). Therefore, the Board finds that a VA examination with respect to the claim decided herein is not warranted. McLendon, 20 Vet. App. at 83. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his service connection claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the 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. There has been no allegation otherwise made by the Veteran in this regard. New and Material Evidence The Veteran seeks entitlement to service connection for low back, lung, itching asbestosis and dermatitis disorders. Implicit in these claims are the contention that new and material evidence which is sufficient to reopen previously disallowed claims of service connection have been received. In general, VA rating decisions or Board decisions that are not timely appealed are final. 38 U.S.C.A. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 20.1100, 20.1103. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has stated that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, the Veteran filed an original claim for service connection for a low back condition, dermatitis, itching asbestos and a lung condition in June 2006. The RO denied the claims in a November 2006 rating decision; the Veteran was notified but did not appeal the decision. Service connection was denied as the evidence did not show a nexus between service and the Veteran's claimed low back, skin lesions, dyshidrotic dermatitis, and coughing and itching resulting from asbestos exposure disabilities. At the time of the November 2006 rating decision, the evidence of record included service treatment records, Chinle IHS treatment records dated April 12, 2006, VA medical records from March 21, 2006 through June 7, 2006 and a VCAA asbestos development worksheet with no response received. Relevant evidence received since the November 2006 rating decision includes the Veteran's VA treatment records which show a history of chronic lower back pain and tinea manus. However, none of this evidence suggests a nexus between the Veteran's claimed disabilities and his military service. The Board is aware that a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). In this case, however, the Veteran has not submitted any additional lay or medical evidence linking his claimed low back disorder, dermatitis, itching asbestosis or lung condition to active service. Currently, the Veteran has provided only bare assertions that his low back disorder, dermatitis, itching asbestosis and lung condition are related to service. That is to say, the Veteran has provided no detail with regard to his contentions. He simply filed the claim to reopen, a notice of disagreement, and a Form 9 substantive appeal, with no evidence linking his claims to service. In addition, there is no new medical evidence, either private or VA, that links the Veteran's low back disorder, dermatitis, itching asbestosis and lung condition claims to his military service. Furthermore, although the Veteran claims that his itching asbestosis and lung condition were caused by exposure to asbestos, the Veteran has provided no details regarding his claimed exposure. The Veteran was mailed a VCAA letter in August 2006 with an asbestos development worksheet, and the January 2014 VCAA detailed the evidence necessary to reopen a claim based upon asbestos exposure, but he has not responded with any asbestos exposure information. Upon close review of the evidence pertaining to these claims, the Board has concluded that new and material evidence has not been submitted to reopen the claims of entitlement to service connection for a low back disorder, dermatitis, itching asbestosis or a lung condition. The RO denied the Veteran's claims because the evidence did not establish that the Veteran's low back disorder, dermatitis, itching asbestosis and lung condition were related to service. Since then, there has been no evidence added to the file which would establish this element. The Veteran's bare assertions that his claimed conditions are related to service are cumulative and duplicative of assertions made in connection with the original claims that were decided in the November 2006 rating decision. In summary, the defects with respect to the service connection criteria at the time of the prior final decision have not been cured, and the claim of entitlement to service connection for low back disorder, dermatitis, itching asbestosis and lung condition may not be reopened. Although the threshold to reopen a claim is low, such threshold has not been met in this case. Shade, 24 Vet. App. at 118. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can also be granted for certain chronic diseases if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (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, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b) (2017). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, the Veteran's claim for entitlement to service connection will be evaluated under the general VA rules and regulations discussed above. The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Heart Condition The Veteran contends that his heart condition is related to his active duty service. Turning to the first element of service connection, the existence of a present disability, the Board finds that the evidence of record confirms the Veteran has a history of benign hypertension. The earliest diagnosis of hypertension of record was in February 2014. As the Veteran is acknowledged to have diagnoses of hypertension, the issue before the Board becomes whether this disability is a result of his active service. The Veteran's STRs, enlistment examination and separation examination are all silent for heart related conditions, treatment or complaints. The Board acknowledges the Veteran's lay assertions in support of his claim, and recognizes that he is competent to report his observable symptomatology. See Layno, 6 Vet. App. at 469. In this case, the Veteran's lay statements do not reflect a disease or injury in-service. As such, they are of little probative value. The medical evidence of record does not show a heart condition until many years after the Veteran's separation from active service, a fact that weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds the medical evidence reflecting no heart disorder until years after service to be more probative as to onset than the Veteran's vague statements. As the record shows that there were no complaints, findings or treatment referable to a heart disorder during the Veteran's period of active service, and the Veteran has not relayed any event or symptoms during service that could be related to the current heart disorder, the Board finds that there is no in-service incurrence or aggravation of a disease or injury. There is no other medical or lay evidence that suggests that the Veteran had characteristic manifestations sufficient to identify a heart condition during service or within the first year after separation from service. See 38 C.F.R. § 3.303 (b). Therefore, service connection for a heart condition may not be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307 (a), 3.309(a). In sum, for the reasons expressed above, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a heart condition. Therefore, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefit sought on appeal is accordingly denied. See 38 U.S.C.A. § 5107 (b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. ORDER New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for a low back condition is denied. New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for a lung condition, to include as secondary to asbestos exposure is denied. New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for dermatitis is denied. New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for itching asbestosis is denied. Entitlement to service connection for a heart condition is denied. REMAND With respect to the Veteran's service connection claims for tinnitus, PTSD, a headache condition and a sleep disorder, the Board finds that VA examinations are warranted. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). The Veteran was previously scheduled for a VA hearing loss and tinnitus examination in October 2016 and a VA PTSD due to military sexual trauma examination in October 2016 and he failed to appear. In an August 2017 affidavit, the Veteran stated that he did not receive the VA examination notice letter because he was in the process of moving. The Board finds that the appellant's statement constitutes good cause for his failure to appear for examinations such that current hearing and tinnitus and PTSD due to military sexual trauma examinations should be rescheduled. Furthermore, in the cover letter for the Veteran's August 2017 affidavit, the Veteran's representative requested that his headache and sleep disorder claims be considered secondary to his PTSD diagnosis. The record reflects that the Veteran has a medical history of migraines and difficulty sleeping. Therefore, the Veteran should be afforded a VA examination to determine the etiology of his migraine condition and claimed sleep condition. 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.) 1. Obtain and associate with the claims file all outstanding records of VA treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. Schedule the Veteran for a VA tinnitus examination addressing the nature and etiology of his claimed tinnitus. The claims file should be provided to the examiner in connection with the examination. After a review of the record on appeal, the examiner must first ascertain whether any tinnitus, clearly and unmistakably preexisted service. If so, the examiner must provide an opinion as to whether any such disability clearly and unmistakably did not undergo a permanent worsening beyond natural progression (aggravation) during service. If the examiner finds that tinnitus did not clearly and unmistakably preexist service, an opinion must be rendered as to whether it is at least as likely as not (50 percent or greater probability) that such disability, to include tinnitus, is etiologically related to service. All opinions must be supported by a complete rationale. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. The examiner should specifically address the significance, if any, of the moderate bilateral ear drum scarring noted on the January 1997 service entrance examination. In providing the requested opinions, the examiner should cite to specific evidence supporting the conclusions reached. The examiner must provide complete rationales for all opinions and conclusions reached. 3. Schedule the Veteran for a VA psychiatric examination in conjunction with his claim for PTSD due to military sexual trauma. The entire claims folder and a copy of this REMAND must be made available to the examiner prior to the examination, and he or she should indicate on the examination report that such a review was completed. Additionally, the examiner should accomplish any indicated special tests, studies, or additional consultations in conjunction with the examination. Based on a review of the record and the findings from clinical evaluation, the examiner should: (a) Identify the nature of the Veteran's current psychiatric diagnosis. If the Veteran does not meet the diagnostic criteria for PTSD, please expressly state so and why such diagnosis is not warranted; (b) If a diagnosis of PTSD is appropriate, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has PTSD that is based on an in-service personal assault stressor. In formulating the opinion, the examiner is asked to address whether any in-service or post-service markers are indicative of a personal assault. The examiner is advised that actual corroboration of the claimed personal assault (e.g., by way of contemporaneous police reports, military disciplinary proceedings, etc.) is not dispositive as to the question of whether the assault occurred. The Board is requesting that the examiner opine as to whether he or she believes that the Veteran sustained an in-service personal assault, as he has alleged, even without corroboration of the record. (c) If the Veteran does have a current diagnosed psychiatric disorder (other than PTSD), then the examiner should provide an opinion on whether it is at least as likely as not (a 50 percent probability or greater) that his diagnosed disorder is etiologically related to his period of service, to include his reported military sexual trauma. The examiner should provide a complete rationale for any opinion provided, and must address all relevant evidence. 4. Schedule the Veteran for an appropriate VA examination, to take place after his PTSD examination, to determine the nature and etiology of any currently present headache condition. The examiner should determine the nature, extent of severity, and etiology of any headache condition. The examiner should provide a diagnosis for any headache condition that existed during the pendency of this claim. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such headache condition, is related to any incident of the Veteran's active duty service. The examiner should also offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's headache condition is proximately due to or permanently aggravated beyond its natural progression by a service-connected disability to include PTSD. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. A detailed rationale for any opinion expressed should be provided. 5. Schedule the Veteran for an appropriate VA examination, to take place after his PTSD examination, to determine the nature and etiology of any currently present sleep disorder. The examiner should determine the nature, extent of severity, and etiology of any sleep disorder. The examiner should provide a diagnosis for any sleep disorder that existed during the pendency of this claim. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such sleep disorder, is related to any incident of the Veteran's active duty service. The examiner should also offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep disorder is proximately due to or permanently aggravated beyond its natural progression by a service-connected disability to include PTSD. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. A detailed rationale for any opinion expressed should be provided. 6. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs