Citation Nr: 1829596
Decision Date: 06/19/18 Archive Date: 07/02/18
DOCKET NO. 14-07 668 ) DATE
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUES
1. Entitlement to an increased rating in excess of 30 percent disabling for chronic adjustment disorder with mixed features of anxiety and depression.
2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected chronic adjustment disorder with mixed features of anxiety and depression.
REPRESENTATION
Appellant represented by: Wisconsin Department of Veterans Affairs
ATTORNEY FOR THE BOARD
R.A. Elliott II, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1966 to January 1968.
This matter initially came before the Board of Veteran's Appeals (Board) on appeal from a May 2012 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.
This matter was previously before the Board in July 2014 at which time it was remanded for a hearing. In an April 2015 statement, the Veteran, through his representative, withdrew his hearing request. 38 C.F.R. § 20.702 (e) (2017).
In a December 2017 Board decision, the Board denied the Veteran an increased rating in excess of 30 percent disabling for chronic adjustment disorder with mixed features of anxiety and depression; and service connection for sleep apnea, to include as secondary to service-connected chronic adjustment disorder with mixed features of anxiety and depression. As set out below, the Board is vacating its December 2017 decision, and remanding the claims for additional development.
ORDER TO VACATE
The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2017).
In the present case, the Board entered a decision denying the Veteran's claims in December 2017, due in part to the Veteran's failure to report for VA examinations, when the evidence indicated he was not properly appraised that the examinations had been scheduled. Proceeding to a decision under these circumstances denied the Veteran his due process.
Accordingly, the December 1, 2017 Board decision addressing the issue of entitlement to an increased rating for a psychiatric disability, and entitlement to service connection for sleep apnea is vacated.
REMAND
As the evidence indicates the Veteran's psychiatric symptoms may have increased since he was last examined for VA purposes, a more current examination is indicated.
Likewise, because of the history given concerning symptoms associated with sleep apnea, an examination to address the etiology of that disability should be provided.
Accordingly, the case is REMANDED for the following actions:
1. Obtain any outstanding relevant records of VA treatment of the Veteran.
2. Afford the Veteran an appropriate VA psychiatric examination to determine the current nature and severity of his service connected psychiatric disorder. Any indicated studies or diagnostic tests should be performed and all clinical findings must be reported in detail.
3. Arrange for an examination to determine the nature and etiology of any current sleep apnea disorder. Upon review of the record, and examination of the Veteran, the examiner is asked to offer an opinion as to whether it is at least as likely as not that any current sleep apnea had its onset during service or is otherwise due to an in-service disease or injury, to include whether it was caused or aggravated (increased in severity beyond its natural progression) by the Veteran's service connected psychiatric disability.
The examiner is asked to provide a medical rationale or explanation for each opinion given.
4. Re-adjudicate the claims.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals