Citation Nr: 21062886 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-04 172 DATE: October 12, 2021 ORDER The claim of entitlement to service connection for obstructive sleep apnea (OSA) is dismissed. REMANDED Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a disability manifested by a chronic cough, to include as due to an undiagnosed illness or a medically unexplained chronic multi symptom illness, is remanded. An initial rating higher than 10 percent for a right ankle disability is remanded. An initial rating higher than 10 percent for a left ankle disability is remanded. An initial rating higher than 10 percent for a back disability is remanded. An initial rating higher than 10 percent prior to November 1, 2018, for a gastrointestinal disability, to include chronic gastritis, gastroesophageal reflux disease (GERD), hiatal hernia and an ulcer; and a rating higher than 30 percent thereafter, is remanded. FINDING OF FACT An August 2021 rating decision granted service connection for OSA, and there remains no justiciable case or controversy as to those issue. CONCLUSION OF LAW The criteria for dismissal of the claim for entitlement to service connection for OSA have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1985 to January 2005, including service in the Southwest Theater of Operations during the Persian Gulf War. He also had a period of active duty for training (ACDUTRA) with the Army National Guard of the United States from August 1973 to February1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2021 letter, the Veteran was notified that the VLJ who conducted the April 2016 hearing is no longer available, and offered the Veteran another opportunity for a hearing before a current VLJ who would participate in the decision in his appeal, consistent with 38C.F.R. §§20.707 and 20.717. The Veteran was also notified that if he did not respond within 30 days from the date of the March 2021 letter, the Board will assume that he does do not want another Board hearing and will proceed accordingly. The Veteran did not respond to the March 2021 letter, and therefore, it is assumed that the Veteran does not want a hearing before a different VLJ. In a November 2019 rating decision, the RO increased the rating for chronic gastritis to 30 percent, effective November 1, 2018. The Veteran has not expressed satisfaction with the increased disability rating; this issue, thus, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In December 2016, February 2020 and July 2021, the Board remanded the appeal for additional development. Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and is receiving a 100 percent disability since January 24, 2013, the entire period on appeal, as well as special monthly compensation. 1. Entitlement to service connection for OSA In this case, the Veteran's claim of service connection for OSA was granted in a rating decision issued by the Agency of Original Jurisdiction (AOJ) in August 2021. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007). See also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. Here, as a result of the AOJ's action, there no longer remains a case or controversy with respect to this claim. Therefore, the Board lacks jurisdiction over the issue of service connection for OSA because it has been granted and rendered moot on appeal. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. Therefore, dismissal of these claim for service connection for OSA is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right hand disability is remanded. 2. Entitlement to service connection for a disability manifested by a chronic cough is remanded. 3. An initial rating higher than 10 percent for a right ankle disability is remanded. 4. An initial rating higher than 10 percent for a left ankle disability is remanded. 5. An initial rating higher than 10 percent for a back disability is remanded. 6. An initial rating higher than 10 percent for a gastrointestinal disability, prior to November 1, 2018, and a rating higher than 30 percent thereafter, is remanded. This case was most recently before the Board in July 2021 when it was remanded for additional development. It appears that the appeal may have been returned to the Board prematurely; the requested development has not been completed. There has not been substantial compliance with the previous remand directives; namely VA examinations/opinions have yet to be obtained and while a supplemental statement of the case was issued, it did not address all the claims on appeal. As such, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In any event, considering the 100% rating, the Veteran, in consultation with his representative, may wish to withdraw the remaining claims (in writing please). In any event, unless the issues are withdrawn, the Board must address these issues. The matters are REMANDED for the following action: 1. Refer the claims file to an examiner regarding the Veteran's claim of service connection for a right hand disability. The examiner must review the claims file, including the Board hearing transcript. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right hand disability (diagnosed right hand degenerative changes, chondrocalcinosis, and sclerosis of the second right finger) had its onset in active service, manifested to a compensable degree following one year after his separation from service, or is otherwise the result of a disease or injury in service. The examiner must address the Veteran's reports of right hand problems in and since service and his report of an in-service right hand/finger injury where he was lifting heavy vests. Refer the claims file to a pulmonologist, if possible, regarding the Veteran's claim of service connection for a disability manifested by a chronic cough. The examiner must review the claims file, including the Board hearing transcript. The examiner should answer all of the following questions: a. Are any of the Veteran's respiratory symptoms, such as his chronic cough that has been present since January 2013, due to a distinct and identifiable respiratory disability? b. If any current respiratory symptom is related to a distinct and identifiable respiratory disability, is it at least as likely as not (50 percent or greater probability) that the current respiratory disability had its onset during either period of active service, is related to the Veteran's respiratory symptoms in service, is related to exposure to dust and sand while stationed in Iraq, or is otherwise the result of a disease or injury in service? c. If any respiratory symptom, to include a chronic cough, that has been present since January 2013 is not due to a distinct and identifiable respiratory disability, is it at least as likely as not (50 percent or greater probability) that the symptom represents an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's service in Southwest Asia or a medically unexplained chronic multi symptom illness which is defined by a cluster of signs or symptoms? d. If so, the examiner should also describe the extent to which the illness has manifested. In formulating the above opinions, the examiner should specifically acknowledge and comment on any respiratory problems present since January 2013, reports of and instances of treatment for respiratory problems in the Veteran's service treatment records, his reports of exposure to sand and dust in Iraq, and his reports of respiratory symptoms in the years since service. The examiner must provide a complete rationale for each opinion given. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected chronic gastritis, GERD, and hiatal hernia to include ulcer. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. The examiner should specifically address the following: a. The rating criteria in DC 7307and to specifically address whether the Veteran's gastritis results in small or large eroded or ulcerated areas and whether or not there are severe hemorrhages. b. Identity the symptoms caused by each of the Veteran's diagnosed gastritis, GERD, and hiatal hernia to include ulcer. The examiner should clearly state which symptoms relate to which condition. c. Has the Veteran's esophageal ulcer resolved? If so, please specify the date it resolved. All opinions must be supported by a complete rationale. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.