Citation Nr: 1808144	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  16-24 449	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disability.
	
2. Entitlement to service connection for pneumonia.

3. Entitlement to service connection for residuals of a left Achilles tendon tear.

4. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected chronic obstructive pulmonary disease (COPD), chronic bronchitis and tracheobronchomalacia, and maxillary sinusitis.

5. Entitlement to service connection for allergic asthma, to include as secondary to herbicide exposure.

6. Entitlement to service connection for Peyronie's disease, also claimed as erectile dysfunction, to include as secondary to herbicide exposure.

7. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to herbicide exposure.

8. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to herbicide exposure.

9. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to herbicide exposure.

10. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to herbicide exposure.

11. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure.

12. Entitlement to service connection for atrial dysrhythmia, to include as secondary to herbicide exposure.

13. Entitlement to service connection for a bladder condition, to include as secondary to herbicide exposure.

14. Entitlement to service connection for chronic right bundle branch block, to include as secondary to herbicide exposure.

15. Entitlement to service connection for skin lesions, to include as secondary to herbicide exposure.


REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran had 20 years of active service from February 1954 to February 1974. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2014 and August 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

This matter was previously remanded by the Board in December 2015 for further development, namely for the issuance of a Statement of the Case.  The Board however finds additional development is warranted in this case pertaining to the issues other than whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disability.  Therefore, the remaining issues are returned to the agency of original jurisdiction (AOJ) for further consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

The issue of entitlement to a disability rating in excess of 60 percent for hiatal hernia, to include on an extraschedular basis, was also remanded by the Board in December 2015 for additional development.  This appeal will be addressed in a separate decision by the Board.

In addition, the issues of entitlement to service connection for COPD, chronic bronchitis and tracheobronchomalacia were also before the Board in December 2015 and remanded for further development.  Following the remand, these issues were subsequently granted by a rating decision in May 2017.  As such, these issues are no longer on appeal and will not be addressed.

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 request to reopen a previously denied claim of entitlement to service connection for entitlement to service connection for a right knee disability is granted herein, and the merits of the claim are addressed in the REMAND section of this decision.

Furthermore, the issues of entitlement to service connection for pneumonia; service connection for residuals of a left Achilles tendon tear; service connection for obstructive sleep apnea, to include as secondary to service-connected COPD, chronic bronchitis and tracheobronchomalacia; service connection for allergic asthma, to include as secondary to herbicide exposure; service connection for Peyronie's disease, also claimed as erectile dysfunction, to include as secondary to herbicide exposure; service connection for peripheral neuropathy of the right upper extremity, to include as secondary to herbicide exposure; service connection for peripheral neuropathy of the left upper extremity, to include as secondary to herbicide exposure; service connection for peripheral neuropathy of the right lower extremity, to include as secondary to herbicide exposure; service connection for peripheral neuropathy of the right lower extremity, to include as secondary to herbicide exposure; service connection for hypertension, to include as secondary to herbicide exposure; service connection for atrial dysrhythmia, to include as secondary to herbicide exposure; service connection a bladder condition, to include as secondary to herbicide exposure; service connection for chronic right bundle branch block, to include as secondary to herbicide exposure; and service connection for skin lesions, to include as secondary to herbicide exposure 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 January 1975 rating decision, the RO denied a claim for service connection for a right knee disability.

2. Evidence associated with the record since the January 1975 denial of the claim for service connection for a right knee disability includes new evidence that relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1. The January 1975 decision in which the RO denied service connection for a right knee disability is final.  38 U.S.C. § 7104 (2012); 38C.F.R. § 20.1100 (2017).

2. The additional evidence presented since the January 1975 decision is new and material, and the claim for service connection for a right knee disability is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000

With respect to the claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 

Regarding the issue of whether new and material evidence was received to reopen the Veteran's claim for entitlement to service connection for a right knee disability, pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006), the veteran must be also be apprised as to the requirements both as to the underlying service connection claim and as to the definitions of new and material evidence.  Kent further requires that the notice inform the veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim.

In light of the favorable outcome of this appeal with respect to the issue of whether new and material evidence has been submitted to reopen the claim (reopening of the claim by the Board), any perceived lack of notice or development is not prejudicial.  See 38 U.S.C. §§ § 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

Regarding the 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).  The Veteran's in-service treatment records and post-service treatment records are in the claims file.  VA treatment records have also been associated with the Veteran's file.  The record indicates the VA has successfully attempted to obtain, to the extent possible, all outstanding medical records identified by the Veteran. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted arguments and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim decided herein, such that the essential fairness of the adjudication is not affected.

II. The Merits of the Claim

In general, RO decisions are final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2017).  Pursuant to 38 U.S.C. § 5108 (2012), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

New evidence means existing 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) (2017).

To warrant reopening of a previously and finally disallowed claim, newly presented or secured evidence must not be cumulative of evidence of record at the time of the last prior final disallowance and must prove merits of the claim as to each central element that was specified as a basis for the last final disallowance of the claim.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).

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 VA's statutory duty to assist the appellant in the development of his claim has been fulfilled.  See 38 U.S.C. § 5108 (2012); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).

In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is generally to be presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."

The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  As such, although it appears the Veteran's claim was reopened in the May 2017 Statement of the Case, the Board must decide whether the Veteran has submitted new and material evidence to reopen a claim of entitlement to service connection.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 

The Veteran's claim for service connection for a right knee disability was originally denied in a January 1975 rating decision as a current disability was not found.  Specifically, the rating decision stated that a recent x-ray of the right knee was normal.  As such, the Veteran was notified of the denial and his appellate rights and he did not appeal the decision.  Therefore, the January 1975 rating decision is final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).  In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156 (b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  However, here, such regulation is inapplicable as no new and material evidence pertaining to the Veteran's claim was received prior to the expiration of the appeal period stemming from the January 1975 rating decision.  See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).

The January 1975 rating action, therefore, represents the last previous final decision on any basis as to the issue of whether the Veteran is entitled to service connection for a right knee disability.  Evans v. Brown, 9 Vet. App. 273 (1996).

According to the record, post-service treatment records since January 1975 indicate the Veteran has been diagnosed with, and treated for, a right knee disability.  Specifically, treatment record from Flowers Hospital reveal the Veteran was diagnosed with degenerative joint disease of the right knee and underwent a total knee arthroplasty of the right knee in April 2011.  Therefore, the Board finds this evidence is new and material, in that it was previously not considered in the prior decision, it relates to an unestablished fact necessary to substantiate the claim, and it raises a reasonable possibility of substantiating the claim.

As such, since there is new and material evidence, the claim is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  It now must be readjudicated on the underlying merits, i.e., on a de novo basis.


ORDER

New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability; the claim is granted to this extent only.


REMAND

The Board has reopened the Veteran's claim for entitlement to service connection for a right knee disability.

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4) (2017).

The Board notes the Veteran has not been afforded a VA examination for his right knee disability.  Given the report of painful knees during service in August 1972, a post-service diagnosis of degenerative joint disease of the right knee and a total knee arthroplasty of the right knee in April 2011, and the lack of an opinion, the Veteran should undergo VA examination to clarify the etiology of the disability.  38 C.F.R. § 3.159 (c)(4) (2017); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one).

Regarding the Veteran's claim of entitlement to service connection for pneumonia, the Veteran was provided with a VA examination in March 2017.  The examiner determined that although the medical records showed a history of lung infection and pneumonia, a current physical examination and imaging studies did not show pneumonia.  However, the Board notes that the Veteran was diagnosed with pneumonia in his private treatment records during the pendency of this claim.  The Court has held that the current disability requirement for entitlement to service connection is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007).

As such, the Veteran's claim must be remanded in order to obtain an opinion as to whether his chronic pneumonia, diagnosed during the appeals period, was related to his military service.

Regarding the Veteran's claim for entitlement to service connection for a left Achilles tendon tear, post-service treatment records confirmed a current diagnosis.  According to an April 2014 MRI of the left ankle, significant tearing of the proximal Achilles tendon, just beyond the myotendinous junction, was found.  In a May 2014 treatment record from Dr. R. Meadows, it was noted that it was discussed at length with the Veteran that quinolones could be the proximate cause of the Achilles tendon tear.  In another May 2014 treatment record, Dr. Meadows stated that the Veteran had been on multiple doses of quinolones which was a known risk and causative agent in Achilles tendon tears.  Additionally, according to a March 2015 VA treatment note, it was stated that the Veteran's recent ruptured Achilles tendon was due to Levaquin (a quinolone antibiotic) therapy, and he experienced chronic recurrent pneumonia. 

Here, the records indicate the Veteran's pneumonia was treated with quinolones therapy.  As such, the Veteran's claim for entitlement to service connection for a left Achilles tendon tear is inextricably intertwined with the claim for entitlement to service connection for pneumonia.  Therefore, the Board finds that adjudication of this claim must be held in abeyance pending development of the claim for entitlement to service connection for pneumonia.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter).

Additionally, although the record indicates the Veteran's pneumonia was treated with quinolone therapy which caused his torn Achilles tendon, it appears this treatment may have also treated his service-connected bronchitis.  As such, the VA examiner conducting the examination for pneumonia should comment on whether the quinolones therapy solely treated the Veteran's chronic pneumonia or whether it also treated other service-connected conditions.

Regarding the Veteran's claim for entitlement to service connection for obstructive sleep apnea, the medical evidence of record indicates the Veteran has a current diagnosis of obstructive sleep apnea.  The Veteran, through his representative, has argued that his obstructive sleep apnea is secondary to his service-connected COPD, chronic bronchitis, tracheobronchomalacia, and maxillary sinusitis.  There is however, no etiological opinion on both direct and secondary theories of entitlement. Given the Veteran's secondary theory of entitlement, the Board finds this claim should be remanded for a VA examination to obtain an adequate etiological opinion.  Thus, the Board finds that there is insufficient competent medical evidence on file to make a decision on this issue and must therefore remand to obtain an examination and medical nexus opinion regarding the etiology of the claimed obstructive sleep apnea.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Finally, regarding the remaining claims for service connection, the Board finds that a remand is necessary in order to attempt to verify the Veteran's alleged exposure to herbicides during service.  The Veteran contends these disabilities stem from chemical exposure, namely Agent Orange, while stationed in South Korea.  The Veteran stated he was exposed to herbicides while stationed at off the Osan Air Base in South Korea and that he had traveled at or near the Korean demilitarized zone (DMZ). 

For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that a veteran was not exposed to any such agent during service.  38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6) (2017). 

The term " herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam area.  The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within one year, after the last date on which a veteran was exposed to an herbicide agent during active service.  38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(ii). 

On January 25, 2011 the VA amended its regulations to provide presumptive herbicide exposure for any veteran who served between April 1, 1968 and August 31, 1971 in a unit determined by VA and the Department of Defense (DOD) to have operated in an area in or near the Korean DMZ in which herbicides were applied.  See 76 Fed. Reg. 4,245-50 (Jan. 25, 2011).  If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicide containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309 (e) will apply. 

In this matter, the Veteran's in-service personnel records show that he served in South Korea at the Osan Air Base from approximately May 1969 to March 1970 with the 557th Civil Engineering Squadron and the 3614 Support Wing.  The Veteran's January 1970 performance report indicated he was involved in Active Red Horse construction tasks by managing the administrative needs of personnel located at "nine geographical locations from near the northern border to the southern sector of Korea." However, in this appeal, no attempt has been made to verify the Veteran's reports of service near the DMZ. 

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected even though there is no record of such disease during service to include chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, and acute and subacute peripheral neuropathy.  38 C.F.R. § 3.309 (e) (2017). 

Notwithstanding the foregoing presumption provisions, which arose out of the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). 

Thus, service connection may be presumed for residuals of Agent Orange exposure by showing two elements.  First, it must be shown that a veteran served in the Republic of Vietnam during the Vietnam era or served in a unit determined by VA and DOD to have operated in an area in or near the Korean DMZ in which herbicide were applied between April 1, 1968 and August 31, 1971.  38 C.F.R. § 3.307 (a)(6) (effective February 24, 2011).  Second, a veteran must have been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309 (e), or a nexus between the currently diagnosed disability and service must otherwise be established.  See Brock, 10 Vet. App. at 162. 

Therefore, on remand, VA should ask U. S. Army & Joint Services Records Research Center (JSRRC) to verify whether the Veteran's duties are among those identified as having served in Korea in or around the DMZ during the applicable time period.

Should the JSRRC confirm that the Veteran operated in an area in or near the Korean DMZ in which herbicides were applied, any additional development deemed necessary for adjudication purposes, such as VA examinations for an etiological opinion, should be performed. 

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. Schedule the Veteran for a VA examination for his right knee disability.  The examiner is asked to address the nature and etiology of any diagnosed right knee disability as reflected in the Veteran's VA and private treatment records.

Based on a review of the claims file and the results of the Veteran's examination, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any right knee disability is of service onset or otherwise related to active service or any incident of such service. 

All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings and lay statements.  A discussion of the facts and medical principles involved would be of considerable assistance to the Board.  The claims file and must be made available to the examiner, and the examiner must specify in the report that the claims file has been reviewed.  Any indicated diagnostic tests and studies should be accomplished.  The Veteran's complaints and lay history should be recorded in full and addressed.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

2. Schedule the Veteran for a VA examination for his chronic pneumonia.  The examiner is asked to address the nature and etiology of pneumonia as reflected in the Veteran's VA and private treatment records.

Based on a review of the claims file and the results of the Veteran's examination, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any chronic pneumonia condition is of service onset or otherwise related to active service or any incident of such service. 
The examiner is also asked to comment on whether the quinolones therapy solely treated the Veteran's chronic pneumonia or whether it also treated other service-connected conditions, specifically COPD, chronic bronchitis, tracheobronchomalacia, or maxillary sinusitis.  

All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings and lay statements.  A discussion of the facts and medical principles involved would be of considerable assistance to the Board.  The claims file and must be made available to the examiner, and the examiner must specify in the report that the claims file has been reviewed.  Any indicated diagnostic tests and studies should be accomplished.  The Veteran's complaints and lay history should be recorded in full and addressed.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3. Schedule the Veteran for a VA examination before an appropriate specialist regarding his claim for service connection for obstructive sleep apnea, to include as secondary to his service-connected COPD, chronic bronchitis, tracheobronchomalacia, and maxillary sinusitis.  

The examiner is asked to clarify whether the Veteran's obstructive sleep apnea is at least as likely as not (50 percent or greater probability) that any such disorder:

a. had its onset during active service or is related to any in-service disease, event, or injury; or 

b. is secondary to, or aggravated by, any service-connected disability, namely COPD, chronic bronchitis, tracheobronchomalacia, and maxillary sinusitis.  The discussion of secondary aggravation should include consideration of the baseline level of a obstructive sleep apnea before the onset of aggravation, as established by medical evidence or by the earliest medical evidence created at any time between the onset of aggravation and medical evidence establishing the current level of severity of obstructive sleep apnea.

All opinions expressed by the examiner should be accompanied by a complete, clear rationale, with citation to relevant medical findings and lay statements.  A discussion of the facts and medical principles involved would be of considerable assistance to the Board.  The claims file and must be made available to the examiner, and the examiner must specify in the report that the claims file has been reviewed.  Any indicated diagnostic tests and studies should be accomplished.  The Veteran's complaints and lay history should be recorded in full and addressed.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

4. Contact the JSRRC to verify whether the Veteran's units operated in an area in or near the Korean DMZ in which herbicides were applied.  The Veteran's personnel records indicate that he was assigned to the 557th Civil Engineering Squadron and the 3614 Support Wing from approximately May 1969 to March 1970 and he testified before the Board he traveled off Osan Air Force Base in Korea.  All efforts to obtain these records, and the responses received, must be documented in the claims file, and must continue until it is reasonably certain that the records do not exist or that further efforts to obtain such verification would be futile. 

5. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not already of record. Inform the Veteran and his representative of the recent regulation changes with regard to exposure to herbicides and veterans serving near the DMZ in Korea. 

6. After completing the requested actions, and any additional notification and development deemed warranted, readjudicate the Veteran's claims remaining on appeal, in light of all pertinent evidence and legal authority.  In adjudicating the claims, all applicable theories of entitlement to service connection should be considered.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the 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).



______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs