Citation Nr: 1800726 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 02-16 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for obstructive sleep apnea (OSA). (The issues of service connection for left knee disability, traumatic brain injury (TBI), hypertension, hearing loss, and diabetes and increased ratings for back, neck, right arm, and neck scar disabilities are addressed in separate decisions.) REPRESENTATION Appellant represented by: Mary M. Long, Attorney-at-Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1986 to October 1988. The matter of service connection for a left shoulder disability is before the Board of Veterans' Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). It was originally before the Board on appeal from a November 2006 rating decision by the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). In November 2007, the Veteran presented testimony at a Travel Board hearing before Veterans Law Judge (VLJ) Catino. In a May 2008 Board decision (signed by a panel of three VLJs, including VLJ Catino), the matter was denied. The Veteran appealed the adverse portion of that decision to the Court of Appeals for Veterans Claims (Court), resulting in a March 2010 Joint Motion for Partial Remand (JMR) by the parties. A March 2010 Court Order remanded the left shoulder matter for compliance with the instructions in the JMR. In April 2010, the panel of three VLJs remanded the matter for additional development. The matter of service connection for OSA is before the Board on appeal from a March 2002 rating decision of the Muskogee RO. In June 2003, the Veteran presented testimony on this matter at a Travel Board hearing before VLJ Singleton, who remanded the matter in January 2004 for additional development. The Veteran again presented testimony at the November 2007 Travel Board hearing before VLJ Catino. In the May 2008 and April 2010 Board panel decisions, the OSA matter was again remanded for additional development. In June 2011, the Veteran presented testimony on both the left shoulder and OSA matters (inter alia) at a Travel Board hearing before an acting VLJ who is no longer with the Board. In a June 2012 panel decision (signed by VLJs Catino, Singleton, and the acting VLJ), both matters were again remanded for additional development. In September 2013, the Veteran was notified that the acting VLJ was no longer with the Board and offered opportunity to present testimony before another VLJ. In October 2013 correspondence, he accepted the offer, and the matters were remanded in November 2013 for the requested hearing to be scheduled. In February 2017, the Veteran presented testimony on both matters before VLJ Moshiashwili. The Veteran has presented hearing testimony on the OSA matter before three VLJs who are currently with the Board, all of whom have participated in this decision. As regards the left shoulder disability, the Veteran has presented testimony before two VLJs currently with the Board (and participating in this decision). In July 2017 he was offered the opportunity to present testimony before the third VLJ who would decide his case (in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2011)). In correspondence from his attorney (received that same month), he declined the offer. Consequently, no additional hearing is required (at this time) on either matter. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board acknowledges that the issues addressed herein have been remanded several times and are on appeal from rating decisions issued in 2002 (OSA) and 2006 (left shoulder). While the Board regrets the additional delay, it nonetheless finds that remand is necessary to ensure that the record is complete and that VA fully complies with its duty to assist. Record Development The record suggests several theories of entitlement for these conditions. One theory common to both disabilities is that they resulted from the same September 1986 event in service. The Veteran asserts that he was injured when a span wire snapped, that he was knocked unconscious and remained so for 12 hours, and that he awoke in sickbay, attached to IVs, with great pain and no memory of the event. He reports being given no duties after that point and being placed in traction in October 1986. (See October 2005 and June 2010 VA examination reports and June 2011 and February 2017 hearing transcripts.) To corroborate his account, the Veteran has provided a letter signed by a fellow service member who claimed to have witnessed the events in question. The service member reported that the Veteran was rendered unconscious then he was dragged across the deck by a cable line and "was taken down to sick bay were [sic] he came to that night." The service member stated that the Veteran remained on limited duty until he was transferred to the Naval Hospital in Long Beach, California. However, the Veteran's service treatment records (STRs) indicate that on September 10, 1986, the Veteran sought treatment for back pain that onset when he was pulling on a line that morning. He was prescribed 24 hours of bed rest, heat, medication (Valium and Motrin), and advised to return in the morning. There is no mention of loss of consciousness or in-patient treatment, administration of IVs, or traction. Additional treatment records though August 1987 indicate that he remained stationed on the U.S.S. New Jersey, where he was assigned tasks that involved heavy lifting (i.e., he was not exclusively on limited duty), such as mess cook. (See February 1987 STR.) In October 1987, over one year after the September 1986 incident, he was temporarily assigned to Naval Station Long Beach because his ship was going to be underway and he was required to attend some follow-up appointments at the land-based clinic. (See, e.g., October 1987 temporary travel order.) Thus, the clinical record currently associated with the Veteran's claims file appears to contradict the lay testimony. During the February 2017 Board hearing, the Veteran testified that records of additional treatment at Long Beach Naval Hospital are not associated with his claims file, to include treatment for suspected TBI and discussion of the alleged in-service events with a psychiatrist. The Veteran's STRs confirm that at least some of his medical records were maintained in a separate file. (See, e.g., November 1987 STR, noting that, due to confidentiality, another file is kept in psychiatry clinic.) The Veteran's attorney has suggested that these records may be able resolve the discrepancy in the Veteran's favor. (See February 2017 hearing transcript, page 20.) It appears that the AOJ attempted to obtain those records from the Naval Medical Center in San Diego because the Long Beach Naval Hospital had closed (and it was assumed that records would have been transferred to San Diego). In August 2001, the San Diego Naval Medical Center responded that records are not retained after five years. The Board notes that the records in question pertain to a then-active service member and may have been transferred elsewhere (i.e., not destroyed); furthermore, it has not been confirmed that the Veteran's records from Long Beach were ever sent to San Diego. Given the critical nature of these records in resolving the nature of the September 1986 incident-and to establishing nexus for disabilities alleged to have been incurred as a result-remand is required for exhaustive development to attempt to locate these identified records for association with the Veteran's claims file. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (holding that VA's duty to assist under the VCAA "requires that VA 'continue' to try to obtain records in the possession of a government agency until such a search becomes futile.") Examination In addition to the record development discussed above, VA's duty to assist requires that additional examinations with nexus opinions be obtained for both matters addressed in this decision. As regards the Veteran's OSA, in April 2017 the Veteran submitted treatise evidence purporting to support a link (via obesity) between his service-connected psychiatric disability and his OSA. No VA opinion has been solicited on this theory of entitlement. As regards both the left shoulder disability and OSA, the last VA examination was provided in July 2012. Since that time, the Veteran has obtained September 2013 and December 2016 private nexus opinions in support of his claims (based, at least in part, on his lay testimony, the credibility of which is addressed in the record development discussed above). Also, the record indicates that in April 1988, the Veteran was assaulted and sustained injuries. No VA opinion has addressed a potential nexus to the April 1988 assault or the conflict between the private nexus opinions and the prior VA examinations of. As the VA examinations of record do not encompass all theories of entitlement, or address all pertinent favorable evidence of record (private opinions), remand for new VA examinations with nexus opinions are warranted. Accordingly, the case is REMANDED for the following action: 1. The AOJ should arrange for exhaustive development to obtain for association with the record copies of the Veteran's complete STRs, to specifically include his separately maintained psychiatric folder and records of all treatment provided at Long Beach Naval Hospital. All facilities where such records may be stored should be searched. If such records have been destroyed or are irretrievably lost, it must be so certified for the record, and the Veteran should be so notified. The scope of the search must be noted in the record. 2. The AOJ should ask the Veteran to identify the provider(s) of any and all evaluations and/or treatment he has received for the disabilities remaining on appeal and to provide authorizations for VA to obtain records of any such private treatment. The AOJ should obtain for the record complete clinical records of all pertinent evaluations or treatment (records of which are not already associated with the record) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 3. After instructions (1) and (2) are completed, the AOJ should arrange for an orthopedic examination of the Veteran to determine the nature and cause of his left shoulder disability. The entire record must be reviewed by the examiner in conjunction with the examination. The examiner should respond to the following: (a) Please identify (by diagnosis) each left shoulder disability found/shown by the record. (b) Please identify the likely cause for each left shoulder disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that any such disability began in (or is otherwise related to) the Veteran's military service? The examiner is asked to comment on the September 1986 and April 1988 incidents as documented in the (expanded) record, the September 2013 and December 2016 private examinations, and the Veteran's lay testimony regarding any pertinent symptoms. If a left shoulder disability shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. After instructions (1) and (2) are completed, the AOJ should arrange for VA examination of the Veteran to determine the nature and cause of his OSA. The entire record must be reviewed by the examiner in conjunction with the examination. The examiner should respond to the following: Please identify the likely cause for the Veteran's OSA. Specifically, is it at least as likely as not (a 50% or greater probability) that any such disability began in (or is otherwise related to) the Veteran's military service or is caused or aggravated by service-connected disabilities or the medication taken therefor? In responding, the examiner is asked to comment on (1) the September 1986 and April 1988 incidents as documented in the (expanded) record; (2) the September 2013 and December 2016 private examinations; (3) the treatise evidence submitted by the Veteran linking psychiatric disability to obesity and OSA; and (4) the Veteran's lay testimony regarding any pertinent symptoms. If the Veteran's OSA shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 5. Then, the AOJ should review the record, conduct any additional development deemed necessary, and readjudicate the claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney opportunity to respond. The case should then be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). VICTORIA MOSHIAHSWILI DEBORAH W. SINGLETON Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ THERESA M. CATINO 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) (2016).