Citation Nr: 1825964 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-30 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to an initial rating in excess of 70 percent for an acquired psychiatric disorder. 4. Entitlement to an effective date earlier than March 14, 2012 for the award of service connection for an acquired psychiatric disorder. 5. Whether the reduction in the disability rating for a lumbar spine strain from 20 percent to 10 percent, effective April 1, 2016, was proper. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Marine Corps from June 2000 to June 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2014, August 2015, January 2016, and March 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In a January 2017 decision, the Board granted entitlement to service connection for an acquired psychiatric disorder. The Board remanded the issue of entitlement to service connection for a cervical spine disability for additional evidentiary development. The Board also remanded the issues of entitlement to service connection for sleep apnea; entitlement to a rating in excess of 50 percent for tension headaches; entitlement to an effective date earlier than June 18, 2015, for the award of a 50 percent rating for tension headaches; and entitlement to restoration of a 20 percent rating for lumbar strain for the issuance of a Statement of the Case. While the matter was in remand status, in March 2017, the RO issued Statements of the Case addressing the issues set forth above. The appellant's attorney submitted a VA Form 9 later that month perfecting an appeal with the issues of entitlement to service connection for sleep apnea and restoration of the 20 percent rating for lumbar strain only. Also while the matter was in remand status, in a March 2017 rating decision, the RO effectuated the January 2017 Board decision awarding service connection for a psychiatric disability. The RO assigned an initial 70 percent disability rating and an effective date of March 14, 2012. The RO also denied TDIU. In January 2018, the appellant submitted a notice of disagreement with the initial 70 percent rating and the assignment of March 14, 2012 as the effective date of the grant of service connection. He also disagreed with the denial of TDIU. A review of the record indicates that a Statement of the Case has not yet been issued. Under these circumstances, a remand for that action is necessary. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand to the RO is necessary). In November 2017, the Board granted the request of the appellant's attorney for a 90-day extension of time to submit additional evidence and argument. In December 2017, the attorney submitted evidence and argument regarding the issue of entitlement to TDIU only, stating that it was his final submission in support of the appellant's appeal. The issues of entitlement to service connection for sleep apnea, entitlement to service connection for a cervical spine disability, entitlement to an initial rating in excess of 70 percent for an acquired psychiatric disorder, entitlement to an effective date earlier than March 14, 2012 for a psychiatric disability, and entitlement to TDIU 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 an August 2015 letter, the RO notified the appellant of a proposed reduction in the rating for his service-connected lumbar spine strain; he was advised of his right to submit additional evidence and to request a predetermination hearing. 2. A January 2016 rating decision reduced the rating of the appellant's service connected lumbar spine strain from 20 percent to 10 percent, effective April 1, 2016. 3. At the time of the January 2016 rating decision, the 20 percent rating for the appellant's service connected lumbar spine strain had been in effect since February 10, 2011, a period of less than 5 years. 4. The evidence at the time of the January 2016 rating decision demonstrated that the appellant's lumbar spine strain had materially improved and that such improvement would be maintained under ordinary conditions of life. The record revealed a strain causing painful motion of the thoracolumbar spine, with no loss of range of motion or functional loss due to pain, no ankylosis, normal muscle strength with no atrophy, no arthritis, and no intervertebral disc syndrome. CONCLUSION OF LAW The reduction in the disability rating for a thoracolumbar strain, effective April 1, 2016, was proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act 200 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist claimants in obtaining the evidence necessary to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As the issue on appeal stems from disagreement with a reduction under 38 C.F.R. § 3.105 and is not based upon a claim or application for benefits, the regulations pertaining to the reduction of evaluations for compensation contain their own notification and due process requirements. See 38 C.F.R. § 3.105(e), (i). The record shows that the RO has fully complied with the procedures required under 38 C.F.R. § 3.105 for reducing the appellant's disability rating. In that regard, the RO sent the appellant a rating decision and notification letter in August 2015 explaining the reasons and bases for the proposed reduction in VA benefits for his service connected lumbar spine strain. The letter also informed the appellant of his option to submit additional evidence and request a hearing, and the applicable time limits for doing so. The record indicates that the RO assembled all relevant VA and private clinical records which the appellant identified and authorized VA to obtain. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2), (3). The appellant was afforded two VA medical examinations in connection with this appeal. 38 C.F.R. § 3.159(c)(4). The Board finds that the reports of these examinations provide the necessary medical opinions and contain sufficient reference to the pertinent schedular criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). For the reasons set for above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. Further, neither the appellant nor his representative has raised any issues with the duty to notify or assist in connection with this particular claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Law Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran's average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). If additional evidence is not received with that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which the 60-day period from the date of the notice to the beneficiary of the final rating action expires. Id. In addition, the appellant will be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. § 3.105(h). These are such important safeguards that the U.S. Court of Appeals for Veterans Claims (Court) has held that, where VA has reduced a veteran's rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for disease subject to temporary or episodic improvement, such as epilepsy, asthma, ulcers, and many skin diseases, will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). Under 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than 5 years, reexaminations disclosing improvement will warrant a rating reduction. Specifically, the Court requires that adjudicators must: (1) review the entire record of examinations and medical and industrial history to ascertain whether the recent examination(s) on which the reduction was based were full and complete; (2) decline to use examinations which are less full and complete than those on which payments were authorized or continued; (3) not reduce an evaluation except in cases where all the evidence clearly warrants a finding of material improvement. In addition, where material improvement in the physical condition is clearly shown, the rating agency must consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Brown, at 419-20. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. 277 (1992). The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, 5243. That formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Under Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107(b); see also 38 C.F.R. §§ 3.102; 4.3. "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis The appellant contends that the April 1, 2016 reduction for a lumbar spine strain was improper and that his 20 percent rating should be restored. The appellant asserts that his 10 percent rating does not contemplate the symptoms he was experiencing at the time of the reduction and has been subjected to since. As a preliminary matter, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e) in reducing the appellant's disability rating. As noted above, the RO issued a letter and rating decision proposing a reduction in August 2015 advising the appellant of the proposed reduction, his right to present additional evidence within 60 days of receipt of the letter, and his right to request a hearing. The January 2016 rating decision effectuating the reduction was not issued until the appropriate time period had elapsed, and the effective date of the reduction was April 1, 2016, in accordance with the applicable criteria. The Board therefore finds that the requirements of 38 C.F.R. § 3.105(e) were met. Thus, the next question for consideration is whether the reduction was proper based on the applicable regulations. At the time of the rating reduction at issue in this case, the appellant's rating had been in effect since February 10, 2011, which is less than 5 years. Under 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than 5 years, reexaminations disclosing improvement will warrant a rating reduction. In determining whether the reduction at issue in this case complies with the provisions of 38 C.F.R. § 3.344(c), the Board has reviewed the entire record. The record indicates that service connection for a lumbar spine strain, with a 20 percent evaluation, effective from February 10, 2011, was based on the findings of an April 4, 2011 examination that found the appellant had reduced range of motion in the thoracolumbar spine. He had forward flexion from 0-60 degrees, extension from 0-15 degrees, right lateral flexion from 0-15 degrees, left lateral flexion 0-15 degrees, right lateral rotation 0-15 degrees, and left lateral rotation from 0-15 degrees. The combined total of his range of motion was 135 degrees. Objective pain was noted on all ranges of motion, and was noted to cause a functional impairment in reduced forward flexion. There was no evidence of ankylosis of the thoracolumbar spine, muscle spasm, abnormal curvature, or abnormal gait. The appellant's thoracolumbar spine was reexamined in February 2014. At that examination, the appellant did not report any flare-ups of his condition. Range of motion testing revealed forward flexion from 0-90 degrees, extension from 0-30 degrees, right lateral flexion from 0-30 degrees, left lateral flexion from 0-30 degrees, right lateral rotation from 0-30 degrees, and left lateral rotation from 0-30 degrees. There was no objective evidence of painful motion and repetitive use testing did not reveal any loss of range of motion or any functional loss. There was no localized pain, no spasm, and no gait issues noted. The appellant did not have any muscle atrophy, had normal muscle strength, reflexes, and sensory perception. There was no evidence of ankylosis. He did display signs of radiculopathy in both lower extremities, which were both granted separate compensable ratings. The appellant did not have any IVDS or arthritis and his condition was found to have no impact on his ability to work. The appellant underwent another thoracolumbar examination in July 2015. At that examination, the appellant reported flare-ups consisting of spasms that occurred after repeated use over time which he claimed caused him trouble walking. Range of motion testing revealed forward flexion from 0-90 degrees, extension from 0-30 degrees, right lateral flexion from 0-30 degrees, left lateral flexion from 0-30 degrees, right lateral rotation from 0-30 degrees, and left lateral rotation from 0-30 degrees. The appellant had pain in all ranges of motion, but it did not cause any functional loss. Repetitive use testing did not reveal any additional loss of range of motion. The examiner found this was consistent with the appellant's report of increased pain after repeated use over time. The examiner did state that it would be speculation to determine whether there was any additional functional loss in the appellant's condition during a flare up because he was not being examined during a flare-up. There was no evidence of pain with weight bearing. While guarding was noted, it did not cause any abnormal gait or spinal contour. No muscle spasms were noted. The appellant did not have any muscle atrophy and had normal muscle strength. Testing did reveal reduced muscle strength and sensory perception on the right side, with normal results for the left side. There was no evidence of ankylosis. He did not have any IVDS or arthritis and his condition was found to have no impact on his ability to work. The appellant indicated he had a dull ache in his back while sitting in the waiting area. The appellant's VA treatment records demonstrate that he consistently reported pain in his lower back. This pain is deemed chronic and has been treated with NSAIDs and opioids. However, the appellant's VA treatment records do not contain any indication of the appellant having reducing functional ability due to his reported pain, nor do his records contain any range of motion testing which would reveal any functional loss. Considering all the evidence available to the RO at the time of the appellant's rating reduction, the Board finds that a preponderance of the evidence indicates an improvement in the appellant's symptoms commensurate with a 10 percent rating. The Board notes the appellant's continuing symptoms of chronic low back pain both when resting and moving, and guarding not resulting in an abnormal gait. However, both range of motion testing and repetitive use testing showed that the appellant's substantial pain no longer produces any functional loss of range of motion which would meet the criteria for a 20 percent rating. As noted, a 20 percent rating for a lumbar spine strain requires evidence of forward flexion of the thoracolumbar spine greater 30 degrees but not greater than 60 degrees, or a combined range of motion of no greater than 120 degrees. Even when considering pain, weakness, fatigability, incoordination, and flare-ups, the appellant's thoracolumbar range of motion was not limited to less than 60 degrees of flexion or 120 degrees in total. This conclusion is strengthened by the fact that the appellant did not show any signs of muscle atrophy to indicate disuse. While reflex and sensory examinations demonstrated some loss, these reductions are considered in connection with the appellant's separate compensable ratings for radiculopathy. The appellant did demonstrate some guarding in his lower back. However, upon examination, this guarding did not result in an abnormal gait or an abnormal curvature of the thoracolumbar spine and, again, further loss of motion due to pain or guarding was no longer shown. Finally, both the February 2014 and July 2015 examinations considered the impact of the appellant's thoracolumbar disability on his employability. After considering all the evidence, both examinations found that there was no impact on the appellant's ability to work as a result of his thoracolumbar disability. Accordingly, the preponderance of the evidence is against the restoration of a 20 percent schedular rating for the appellant's lumbar spine strain. In reaching this determination, the Board has carefully considered the appellant's contentions and recognizes that he continues to experience significant pain from his lumbar spine strain. However, the Board finds that the record establishes that the material improvement in the appellant's service-connected disability is maintained under the ordinary conditions of life. As the record reflects, the increased range of motion demonstrated at the February 2014 VA examination was still present at the time of the July 2015 VA examination. Additionally, both examiners concluded that the appellant's low back disability did not impact his employability, an indicator that the improvement shown at both examinations reflected an improvement in the appellant's ability to function under the or ordinary conditions of life and work. Brown, at 419-20. ORDER The reduction in the disability rating for a lumbar spine strain from 20 percent to 10 percent, effective April 1, 2016, was proper; the appeal is denied. REMAND The appellant contends that he is entitled to service connection for sleep apnea and a cervical spine disability. After a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating these claims. Sleep Apnea The appellant asserts that his sleep apnea was incurred during active service. The appellant has a diagnosis of significant obstructive sleep apnea from February 2015. He maintains that the condition, as characterized by symptoms of loud snoring, began while he was in active service. He has also stated that his roommate told him that he was a very loud snorer at night and that he would stop breathing at times in his sleep. He also indicated that he experienced daytime sleepiness while in service and started taking daily naps beginning in 2002. He also testified that since that time, he has been having persistent daytime hyper somnolence and morning headaches. The appellant was afforded a VA Gulf War Syndrome examination for his sleep apnea in June 2015. The examiner opined that the appellant's sleep apnea was not related to an undiagnosed illness related to his service in the Gulf War because of the appellant's testimony that he began experiencing symptoms of the condition prior to his service in Southwest Asia and because his symptoms were not undiagnosable, as they were directly related to a "physical-anatomic obstruction of the upper airway." In discussing the issue of direct service connection, the examiner stated that the condition was not at least as likely as not related to active service. In the rationale supporting this conclusion, however, the examiner appeared to state that the appellant's condition had its onset during military service. As this opinion is internally inconsistent, the Board finds that it does not provide an adequate basis for deciding the case and that a new medical opinion is necessary in order to adjudicate this claim. A new opinion should carefully consider the appellant's lay testimony as to the time of onset of the symptoms of snoring and daytime sleepiness while the appellant was in-service. The Board also notes that service connection may be granted for "any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service." 38 C.F.R. § 3.303(d). Cervical Spine Disability The appellant asserts that his cervical spine disability was caused by a motor vehicle accident he was in while in service in 2003. The appellant did complain of both neck and shoulder pain while in service after the accident and these complaints were noted in his service treatment records. In 2006, the appellant was diagnosed with cervicalgia after he continued to complain of neck pain while in National Guard service. Even at that time he attributed the condition to a prior motor vehicle accident. He also stated that it could have been related to a fall in early 2000 where he injured his lower back and hip or even to a lingering issue from his days as a high school wrestler. He continued experiencing neck pain and was afforded an MRI in June 2012. MRI results showed the appellant with degenerative disk disease (DDD) at the C5-C6 and C6-C7 vertebrae with disk protrusion at both joints and a focal annular tear at the C6-C7 vertebra. He was also noted to have a straightening of the cervical spine. The appellant was afforded a VA examination to determine the etiology of his cervical spine disability in May 2017. In rendering an opinion, the examiner found that the appellant's condition was not at least as likely as not related to his active service. The examiner relied primarily on the fact that this condition was not noted on the appellant's discharge examination and that many adults show degenerative changes in the cervical spine on radiographs. Further, the examiner cited to a statistic that said 50% of adults who were in motor vehicle accidents complain of whiplash in the year after the accident. The Board finds this reasoning and rationale inadequate as it does not address the appellant's disability and the relation of that disability to the appellant's documented in-service injury. The Board notes that the appellant's discharge examination was not a complete physical, but an examination for VA disability compensation purposes and focused on the disabilities the appellant was seeking service connection for upon discharge. Further, citing statistics of the general population, without explaining how they apply to the appellant's claim that his injury was incurred in-service is not an adequate basis upon which to deny service connection. As such, the Board finds that a new examination is necessary to provide an opinion on the etiology of the appellant's cervical DDD. This opinion should be supported with adequate supporting rationale. Entitlement to an initial rating in excess of 70 percent for an acquired psychiatric disorder. Entitlement to an effective date earlier than March 14, 2012 for the award of service connection for an acquired psychiatric disorder. Entitlement to TDIU As set forth above, in a March 2017 rating decision, the RO effectuated the January 2017 Board decision awarding service connection for a psychiatric disability. The RO assigned an initial 70 percent disability rating and an effective date of March 14, 2012. The RO also denied TDIU. In January 2018, the appellant submitted a notice of disagreement with the initial 70 percent rating and the assignment of March 14, 2012 as the effective date of the grant of service connection. He also disagreed with the denial of TDIU. A review of the record indicates that a Statement of the Case has not yet been issued. Under these circumstances, a remand for that action is necessary. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand to the RO is necessary). Accordingly, the case is REMANDED for the following action: 1. The RO should issue a Statement of the Case to the appellant and his representative addressing the issues of entitlement to an initial rating in excess of 70 percent for an acquired psychiatric disorder, entitlement to an effective date earlier than March 14, 2012 for the award of service connection for an acquired psychiatric disorder, and entitlement to TDIU. The appellant must be advised of the time limit in which he may file a substantive appeal, if he so desires. 38 C.F.R. § 20.302(b). These issues should be returned to the Board for further appellate consideration, only if an appeal is properly perfected. 2. Refer the VA claims file to an appropriate medical professional to provide an opinion as to the etiology of the appellant's sleep apnea. After reviewing the record, the clinician should provide an opinion as to the whether it is at least as likely as not that the appellant's sleep apnea had its onset during his active service or is otherwise causally related to his active service. The examiner must consider the appellant's contentions that he experienced symptoms of nighttime snoring, nighttime berating interruptions, and daytime sleepiness requiring naps prior to separation. 3. Refer the VA claims file to an appropriate medical professional to provide an opinion as to the etiology of the appellant's cervical spine DDD. After reviewing the record, the clinician should provide an opinion as to the whether it is at least as likely as not that the appellant's current cervical spine DDD is causally related to his active service or any incident therein. In providing this opinion, the clinician should consider the appellant's in-service report of neck pain after a 2003 in-service motor vehicle accident. 4. After conducting any additional development deemed necessary, the RO should review all the evidence of record in adjudicating the appellant's remaining claims on appeal. If the appellant's claims remain denied, he and his representative should be provided with a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration, if 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 (2012). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs