Citation Nr: 1808063 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-24 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a rating in excess of 50 percent for obstructive sleep apnea. 2. Entitlement to a rating in excess of 50 percent for bilateral hearing loss. 3. Entitlement to a compensable rating for chronic rhinitis. 4. Entitlement to total disability for individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1974 to August 1977. This matter is on appeal before the Board of Veterans' Appeals (Board) from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In June 2017, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is associated with the electronic claims file. The issue of heart disease as a secondary condition to service-connected sleep apnea has been raised by the record in the June 2017 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication. For the service-connected conditions on appeal, it appears that the most recent VA examination for the Veteran was in April 2011. While mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course, in the present case a new examination is warranted. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). The Veteran contended in his June 2017 hearing, as well as in statements in the record, that his service-connected conditions have worsened. The Veteran's sleep apnea is rated at 50 percent under Diagnostic Code (DC) 6847 which provides that a 50 percent disability rating is assigned for sleep apnea that requires the use of a breathing assistance device such as a CPAP machine. A 100 percent disability rating is warranted for sleep apnea that has resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or, where a tracheostomy is required. 38 C.F.R. § 4.97, DC 6847 (2017). The Veteran testified that his sleep apnea had worsened and it was hard for him to breathe at times. The Board notes that in addition to his sleep apnea, medical records show that respiratory problems were reported during the course of his treatment and ultimate surgery for a heart condition. On remand, the Veteran should be afforded a VA examination to determine the level of severity of his sleep apnea. The Veteran is currently service-connected at a 50 percent rating level for bilateral hearing loss. The Veteran stated in the June 2017 Board hearing that he had undergone an audiology examination in the previous month. The results of that examination are not part of the Veteran's electronic claims file. Additionally, the Veteran's prior VA examination for hearing loss was in March 2011. The examiner reported that the Veteran's results were "significantly different" from previous examinations and that the Veteran had also reported fluctuating hearing levels. The Veteran should be afforded a new VA examination for hearing loss. The Veteran currently has a noncompensable rating for chronic rhinitis under DC 6522. That DC for allergic or vasomotor rhinitis provides that a 10 percent rating is assigned where there is a 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side of the nasal passage without polyps, and a 30 percent rating is assigned when there are polyps present. 38 C.F.R. § 4.97, DC 6522. The Veteran's most recent VA examination was in April 2011, almost eight years ago. The Veteran was shown at the time to have a 40% obstruction of the right nasal passage and 70 percent obstruction of the left nasal passage. There were no polyps reported. The Veteran contended at the June 2017 hearing that his rhinitis problems are worse. The Veteran should be afforded an updated VA examination for his chronic rhinitis condition. The development requested in connection with the sleep apnea, rhinitis, and hearing loss claims could have bearing on whether an award of TDIU is proper. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of the other remanded claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc), Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). Accordingly, the case is REMANDED for the following action: 1. With the help of the Veteran, identify any outstanding medical treatment records, with specific attention to the audiological examination the Veteran claimed he had around May 2017. 2. Schedule the Veteran for a new examination to assess the severity of his sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should specifically discuss the impact of the Veteran's service-connected condition on his ability to work. 3. Schedule the Veteran for a new examination to assess the severity of his hearing loss. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should specifically discuss the impact of the Veteran's service-connected condition on his ability to work. 4. Schedule the Veteran for a new examination to assess the severity of his chronic rhinitis. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should specifically discuss the impact of the Veteran's service-connected condition on his ability to work. 5. After undertaking any necessary additional development, readjudicate the remaining disability issues on appeal, to include all evidence available. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must 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. §§ 5109B, 7112 (West 2014). _________________________________________________ DAVID L. WIGHT 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).