Citation Nr: 1601543 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 12-33 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to an initial rating greater than 10 percent for right knee degenerative changes. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from June 1989 to February 1997 in the U.S. Army, including in the southwest Asia theater of operations during the Persian Gulf War, and from November 1997 to August 2002 in the U.S. Navy. He also had additional unverified service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied, in pertinent part, the Veteran's claim of service connection for a left ankle disability. The Veteran disagreed with this decision in March 2010. He perfected a timely appeal in November 2012 and requested a Board hearing. This matter also is on appeal from a January 2010 rating decision in which the RO granted, in pertinent part, the Veteran's claim of service connection for right knee degenerative changes, assigning a 10 percent rating effective December 8, 2008. The Veteran disagreed with this decision in March 2010. He perfected a timely appeal in November 2012. A videoconference Board hearing was held at the RO in August 2015 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board notes that, in a January 2014 rating decision, the RO denied, in pertinent part, a claim of service connection for obstructive sleep apnea. The Veteran disagreed with this decision in July 2014. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issues of entitlement to a disability rating greater than 30 percent for PTSD, entitlement to a disability rating greater than 40 percent for lumbar spine degenerative changes with disc degeneration at L5-S1, entitlement to service connection for tinnitus, entitlement to service connection for vertigo, and whether new and material evidence has been received to reopen a claim of service connection for migraine headaches have been raised by the record in a November 2015 statement but have not been adjudicated by the Agency of Original Jurisdiction (AOJ) (in this case, the RO). Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he incurred obstructive sleep apnea during active service. He contends that he incurred a left ankle disability during active service and experienced continuous left ankle disability since his service separation. He also contends that his service-connected right knee degenerative changes are more disabling than currently evaluated. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claims can be adjudicated on the merits. The Veteran's service treatment records show that, at his U.S. Army pre-enlistment physical examination in August 1988, clinical evaluation of the Veteran's left ankle was normal. The Veteran denied all relevant pre-service medical history. On outpatient treatment in October 1989, the Veteran complained that he had twisted his left ankle during basketball practice. Objective examination of the left ankle showed no edema, lateral inferior malleolar tenderness, and a full range of motion. The assessment was minor ankle sprain. At his U.S. Army separation physical examination in September 1996, prior to his separation from service in February 1997, clinical evaluation of the Veteran's left ankle was normal. He denied all relevant in-service medical history. At his U.S. Navy enlistment physical examination in November 1997, clinical evaluation of the Veteran's left ankle was normal. On outpatient treatment on April 11, 2001, the Veteran complained that he had turned his left ankle while playing basketball. Physical examination of the left ankle showed warm skin, moderate swelling, and an ability to move his toes without discomfort. The diagnosis was left ankle sprain. On April 24, 2001, the Veteran complained of left ankle swelling on both sides of the ankle. He had been using 1 crutch for support. He also was doing better. Objective examination showed he was unable to raise his left heel or make a simple limb stand without support. The assessment included resolving ankle sprain. On periodic physical examination in May 2001, clinical evaluation of the Veteran's left ankle was normal. He denied all relevant medical history. In June 2001, the Veteran complained that he had been unable to complete physical readiness training (PRT). Objective examination of the left ankle showed visible medial edema and no ecchymosis. He was issued a lace-up ankle brace. The assessment was non-resolving Grade II ankle sprain. At his separation physical examination in May 2002, prior to his separation from U.S. Navy service in August 2002, the Veteran denied all relevant in-service medical history. On VA ankle conditions Disability Benefits Questionnaire (DBQ) in September 2012, the Veteran reported injuring his ankle following an in-service fall in 1995 "due to parachute mal-function." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. Range of motion testing of the left ankle showed plantar flexion to 45 degrees or greater with objective evidence of painful motion at 45 degrees or greater, plantar dorsiflexion to 20 degrees or greater with no objective evidence of painful motion, and no additional limitation of motion following repetitive testing. Physical examination of the left ankle showed no tenderness to palpation of the joints or soft tissue, 5/5 muscle strength, no ligament instability, and no ankylosis. X-rays of the left ankle were normal. The VA examiner opined that it was less likely than not that the Veteran's claimed left ankle disability was related to active service. The rationale for this opinion was that, although a review of the claims file showed that the Veteran injured his left ankle in 2001, his left ankle was normal on physical examination and on x-rays. The Veteran testified at his August 2015 Board hearing that he experienced left ankle flare-ups, swelling, and problems standing, lifting, and running due to his claimed left ankle disability. See Board hearing transcript dated August 17, 2015 at pp. 5. He also testified that he wore an ankle brace and used a cane due to problems with his claimed left ankle disability. Id., at pp. 6. On VA outpatient treatment later on August 18, 2015, the Veteran stated that his left ankle pain had been ongoing since 1995. He stated that he was seen by a doctor in Conyers for evaluation of his ankle and that he also had an upcoming appointment with Ortho GA on August 25, 2015. He also requested another left ankle brace. It was noted that a prosthetic consult was placed. The Board finds that additional pertinent medical evidence identified by the Veteran should be associated with the file. Also, in light of additional pertinent medical evidence added to the file since the September 2012 VA examination, the Board finds that the Veteran should undergo another VA examination and another medical opinion should be procured. With respect to the Veteran's service connection claim for obstructive sleep apnea, as noted in the Introduction, the AOJ denied this claim in a January 2014 rating decision. As also noted in the Introduction, the Veteran disagreed with this decision in July 2014. To date, however, the AOJ has not issued a Statement of the Case (SOC) on this issue. Where a claimant files a notice of disagreement and the AOJ has not issued an SOC, the issue must be remanded to the RO for an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Thus, the issue of entitlement to service connection for obstructive sleep apnea is remanded to the AOJ for issuance of an SOC. With respect to the Veteran's higher initial rating claim for right knee degenerative changes, the Board notes that he essentially contends that this disability is more disabling than currently evaluated. He testified to this effect before the Board in August 2015. A review of the Veteran's VBMS eFolder indicates that his most recent VA examination for the right knee occurred in September 2012. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that, when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in September 2012, the Board finds that, on remand, he should be scheduled for an updated VA examination to determine the current nature and severity of his service-connected right knee degenerative changes. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The AOJ also should attempt to obtain the Veteran's updated VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case (SOC) to the Veteran and his service representative on the claim of service connection for obstructive sleep apnea. A copy of any SOC issued should be included in the claims file. This claim should be returned to the Board for further appellate consideration only if the Veteran perfects a timely appeal. 2. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for his left ankle and service-connected right knee degenerative changes since September 2012, including the doctor in Conyers who evaluated his ankle and Ortho GA as he identified in the August 18, 2015 VA treatment record. Obtain all VA treatment records which have not been obtained already including VA treatment records dated since August 2015. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 3. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected right knee degenerative changes. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether the Veteran's service-connected right knee degenerative changes are manifested by moderate recurrent subluxation or lateral instability. The examiner also is asked to state whether the Veteran's service-connected right knee degenerative changes are manifested by severe recurrent subluxation or lateral instability. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. 4. Schedule the Veteran for a VA examination to determine the etiology of any left ankle disability. The VA examiner should thoroughly review the Veteran's VA file, particularly the STRs and lay statements. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: Is it at least as likely as not (a probability of 50 percent or greater) that any left ankle disability is etiologically related to the Veteran's active military service, including symptomatology noted in October 1989, April 2001, and June 2001? All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 5. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 6. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).