Citation Nr: 1312840 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-26 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right hip disorder, including as secondary to service-connected disabilities. 2. Entitlement to service connection for sleep apnea, including as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to March 1977, December 1990 to June 1991, and January 2003 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Winston-Salem, North Carolina. No hearing was requested. In January 2012, the Board remanded these issues for further development and consideration. At that time, the issue of service connection for a left hip disorder was also on appeal. However, service connection for left hip arthritis was granted in an October 2012 rating decision, which is a full grant of that benefit sought on appeal. Therefore, service connection for a left hip disorder is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). As discussed below, the remand directives were not substantially complied with, and the case must again be remanded. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran claims that he has sleep apnea that was caused or aggravated by his active service or his service-connected PTSD. As noted in the prior remand, there is no reference to sleep apnea or other sleeping problems in service. The Veteran was diagnosed with sleep apnea after service in June 2007. He was afforded a VA examination in February 2012 to determine the nature and etiology of his sleep apnea. However, the examiner failed to address the question of secondary service connection based on aggravation by PTSD, as directed in the prior remand. Therefore, the prior remand directives were not substantially completed, and the February 2012 VA examination is inadequate. See Stegall, 11 Vet. App. 268. Moreover, the Veteran's representative subsequently submitted medical articles concerning a possible relationship between PTSD and sleep apnea, based on either causation or aggravation. The evidence should also be considered by the examiner. The Veteran also contends that he has a right hip disorder that was caused or aggravated by his service-connected bilateral knee disabilities, and he was afforded a VA examination in February 2012 concerning the hips. Although he reported pain in the right hip, and there was objective evidence of reduced range of motion, the examiner found that there was no pathology to warrant a diagnosis of a right hip disability. As such, an opinion as to the etiology of a right hip disorder was not offered. As noted above, the Veteran was granted service connection for left hip osteoarthritis, as secondary to the left knee disability. This award was based, in part, on the VA examiner's diagnosis and positive nexus opinion. The examiner relied on a December 2010 private study that showed osteoarthritis of the left hip. This record is in the claims file, and it appears to be an MRI of the left hip only. In contrast, the examiner does not appear to have obtained any x-rays or other imaging studies of the right hip, and there are no other such studies of record. Given that the Veteran reported recent onset of pain in the right hip, and there was reduced range of motion of the right hip during the VA examination, the Board finds that x-rays or other appropriate imaging studies are necessary to determine if there is a currently diagnosable right hip disorder, such as arthritis. Once VA undertakes the effort to provide an examination for a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An opinion is considered adequate when it is based on consideration of the prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Veteran should be scheduled for a new VA examination with appropriate diagnostic studies for the right hip, if such records are not otherwise obtained upon remand. Further, a medical opinion should be obtained as to the etiology of any currently diagnosed right hip disorder, to include whether it was caused or aggravated by any of the Veteran's service-connected disabilities. In this regard, the Veteran is now service-connected for lumbar spondylosis with intervertebral disc syndrome involving the right sciatic nerve, related sensory deficit in the right lower extremity, left knee osteoarthritis, right knee osteoarthritis and instability, and left hip osteoarthritis. In offering an opinion as to the left hip, the VA examiner noted that pain in the knees can alter the gait and cause degeneration over time, and the Veteran has had antalgic gait. There is also evidence that the Veteran uses a cane due to his back, knees, and hip disabilities. This evidence should also be considered with regard to the claimed right hip disorder. The Veteran's representative also argues that, if there is no diagnosable right hip disorder, service connection should be granted based on his Gulf War service. The Board notes that arthritis must be established by x-rays for VA purposes. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Further, pain alone, without a diagnosed or identifiable underlying condition, is generally not a disability that is subject to service connection. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, service connection may be granted to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability, meaning an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, provided that such disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317. Further, the signs and symptoms which may be manifestations of undiagnosed illness or a chronic multi-symptom illness for these purposes include, but are not limited to, joint pain. See 38 C.F.R. § 3.317(b). Here, the Veteran served in the Southwest Asia Theater of the Persian Gulf War from May to October 1991, and again when he was deployed to Kuwait from April 2003 to December 2003. See DD Form 214's. As such, he had qualifying service for consideration under 38 C.F.R. § 3.317. Therefore, to allow for adjudication under these provisions if appropriate, the VA examiner should measure and record the manifestations of the Veteran's right hip symptomatology, and should indicate the date of onset. The examiner should also indicate whether the right hip symptoms such as joint pain can be attributed to any known clinical diagnosis. The Board notes that the Veteran has a paper claims file and a Virtual VA file (a highly secured paperless storage system). The Virtual VA file includes additional VA treatment records dated through October 2012, as well as VA psychological and general medical examination reports dated in December 2012. Development and adjudication upon remand should take into account this paperless file. The Board notes that the Veteran submitted private treatment records dated through 2011 after the last remand, and he has not identified any other outstanding private records. However, given the other development needed in this case, ongoing VA treatment records should be obtained, and specifically from October 2012 forward. 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) (2012). Expedited handling is requested.) 1. Obtain copies of any VA treatment records dated from October 2012 forward, to include any diagnostic testing or imaging studies of the right hip. All records received should be associated with the claims file. 2. Thereafter, forward the entire claims file, including a copy of this remand, to the February 2012 VA examiner for an addendum opinion concerning sleep apnea. (If such examiner is not available, the file should be forwarded to another appropriate individual for an opinion. A new VA examination as to sleep apnea should be scheduled only if deemed necessary by the examiner.) Review of the claims file must be noted in the addendum (or examination) report. The examiner should respond to the following: (a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's sleep apnea was proximately caused by or due to his PTSD, to include any medications taken to control his psychiatric symptoms? In particular, please indicate whether the initial opinion in this regard is changed by the additional medical articles submitted by the Veteran, or by any additional treatment records received, and why. (b) If not, is it at least as likely as not that the Veteran's sleep apnea was aggravated (meaning permanently worsened beyond its natural progression) by his PTSD, to include due to medications taken to control his psychiatric symptoms? If aggravation is found, the examiner should identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the sleep apnea by the service-connected disability, to the extent possible. A complete rationale must be provided for any opinion offered. The examiner is advised that irrefutable medical evidence is not necessary; rather, the question is whether the evidence "at least as likely as not" establishes a relationship. All evidence of record should be considered, including service records, VA and private medical evidence, and medical articles. Further, the Veteran's statements as to the onset and timing of his observable symptoms should be considered. The Veteran's statements cannot be rejected due solely to a lack of corroborating medical evidence. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the report and explain why a non-speculative opinion cannot be offered, to include what, if any, additional information or evidence is needed. 3. After all available, outstanding treatment records have been associated with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of any current right hip disorder. All necessary tests and studies should be conducted, including but not limited to x-rays of the right hip (if no such studies are of record). The examiner should respond to the following: (a) Is there any current diagnosable right hip disability to account for the Veteran's complaints of pain and reduced range of motion, as recorded in the February 2012 VA examination or other evidence of record? Please identify any current disability, and whether the right hip symptoms such as joint pain can be attributed to any known clinical diagnosis (arthritis or otherwise). Also, please measure and record all right hip symptomatology, and indicate the date of onset. (b) Was any currently diagnosed right hip disability at least as likely as not (probability of 50 percent or more) caused or due to the Veteran's service-connected bilateral knee disabilities, left hip disability, lumbar spine disability, or associated disability of the right lower extremity? (c) If not, was any currently diagnosed right hip disability at least as likely as not aggravated (meaning permanently worsened beyond its natural progression) by the Veteran's service-connected bilateral knee disabilities, left hip disability, lumbar spine disability, or associated disabilities of the right lower extremity? If aggravation is found, the examiner should identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the sleep apnea by the service-connected disability, to the extent possible. (d) If any currently diagnosed right hip disability is not secondary to service-connected disabilities, is it at least as likely as not that such disorder is otherwise related to the Veteran's active military service? A complete rationale must be provided for any opinion offered. The examiner is advised that irrefutable medical evidence is not necessary; rather, the question is whether the evidence "at least as likely as not" establishes a relationship. All evidence of record should be considered, including service records as well as VA and private medical evidence and medical articles. Further, the Veteran's statements as to the onset and timing of his observable symptoms should be considered. The Veteran's statements cannot be rejected due solely to a lack of corroborating medical evidence. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the report and explain why a non-speculative opinion cannot be offered, to include what, if any, additional information or evidence is needed. 4. The RO/AMC should review the examination or addendum reports and ensure that the above questions have been answered, and that the reports are otherwise adequate. If not, clarification should be obtained. 5. After completing the requested actions, and any additional notification and/or development warranted, readjudicate the claims based on all lay and medical evidence of record. If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative. Allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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. All claims 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 Supp. 2012). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).