Citation Nr: 1804175 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-30 749A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis of the right knee (herein right knee disability). 2. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis of the left knee (herein left knee disability). 3. Entitlement to service connection for a sinus disorder, to include sinusitis and nosebleeds/polyps. 4. Entitlement to service connection for a respiratory disorder, to include bronchitis and asthma. 5. Entitlement to service connection for a thoracic spine disorder, to include residual compression fracture of the thoracic spine. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 1, 2014 based on the Veteran's right and left knee disabilities. 7. Entitlement to service connection for a bilateral hearing loss disability. 8. Entitlement to service connection for sleep apnea (claimed as insomnia). 9. Entitlement to service connection for chronic fatigue syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1988 to October 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Some of the issues on appeal were remanded by the Board in April 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND I. Right and Left Knee Disabilities The Veteran was afforded VA examinations in regard to his right and left knee disabilities in September 2009 and April 2015. The United States Court of Appeals for Veterans Claims (Court) has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2017) states that "[t]he joints involved should be tested or pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The prior VA examinations did not comply with Correia and as such, remand is required so that the Veteran may be afforded new VA examinations that contain adequate information pursuant to Correia. Also, the April 2015 VA examination report noted that the Veteran reported flare-ups and the examiner noted that they were "[u]nable to say [without] mere speculation" whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups because "not seen during flare-ups time." The Court discussed in Sharp v. Shulkin, 29 Vet.App. 26 (2017) a similar opinion and rationale and found such to be inadequate. In this regard, the Court stated that "[b]ecause the VA examiner did not ...estimate the [V]eteran's functional loss due to flares based on all the evidence of record-including the [V]eteran's lay information-or explain why she could not do so, the...examination was inadequate." As such, while on remand, the requested VA opinion must also contain adequate information pursuant to Sharp. II. Sinus Disorder The Board remanded this claim in April 2015. It stated that the Veteran "has been diagnosed with nasal disability (history of sinusitis and epistaxis) during the appeal period." The relevant remand directive requested a VA examination "to determine the etiology of [the Veteran's] sinus disorder(s)" and a VA opinion addressing direct service connection with respect to "any current sinus disorder." The directive also stated that "[i]n providing this opinion, the examiner should specifically acknowledge the service treatment records [STRs] reflecting treatment for upper respiratory infections with sinus congestion and/or red drainage on December 13, 1988, and January 5, 1989, and for sinus congestion with a clear nasal discharge, headaches, and tenderness over the right maxillary sinus on July 22, 1989; as well as any environmental exposures while serving in Southwest Asia." With respect to environmental exposure, the Board notes that the AOJ found that the Veteran served in Southwest Asia from August 1991 to October 1991 (and granted entitlement to service connection for fibromyalgia and irritable bowel syndrome based on such service). See February 2010 Rating Decision. The Veteran was afforded a VA examination in August 2015 and a Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (DBQ) was completed. In response to a question as to whether the Veteran "now have or has he/she ever been diagnosed with a sinus" condition, the examiner noted acute sinusitis that was resolved in 2015. In a different section, the examiner noted that the Veteran had sinusitis, that the "type of sinusitis currently affected by the Veteran's chronic sinusitis" was maxillary and that the Veteran did not currently have any findings, signs or symptoms attributable to chronic sinusitis. The examiner provided a negative opinion stating that "Veteran's current complaints of sinus disorders were not incurred in or caused by mi[l]itary service." A rationale was provided, which included the following: "[t]here is no medical nexus establishing causality between current complaints and military service. No residu[al] or chronic disability subject to service connection is shown by the [STRs] or demonstrated by evidence fol[l]owing service" Upon review of the provided opinion, such did not substantially comply with the relevant April 2015 Board remand directive and remand is therefore required for a new VA examination and opinion, as outlined in the relevant remand directives below. Stegall v. West, 11 Vet. App. 268 (1998). As referenced, the relevant April 2015 Board remand directive stated that "[i]n providing this opinion, the examiner should specifically acknowledge" certain STRs and "any environmental exposures while serving in Southwest Asia." The provided opinion did not reference or discuss these specifically requested topics and therefore did not substantially comply with the remand directive. In addition, the examination report was not clear as to whether the Veteran was diagnosed with chronic sinusitis or acute sinusitis. Also, the opinion referenced "Veteran's current complaints of sinus disorders" and did not reference nosebleeds (epistaxis) or the September 2009 head CT results noting chronic paranasal sinus disease, which the April 2015 Board remand referenced. On remand, the opinion requested will be asked to address any sinus disorders present during the appeal period (dating to approximately February 2009). III. Respiratory Disorder The Board remanded this claim in April 2015. The relevant remand directive requested a VA examination "to determine the etiology of [the Veteran's] respiratory disorder(s)" and a VA opinion addressing direct service connection with respect to "any current respiratory disorder." The directive also stated that: In providing this opinion, the examiner should specifically acknowledge the [STRs] reflecting treatment for upper respiratory infections on December 13, 1988, and January 5, 1989, as well as any environmental exposures while serving in Southwest Asia, and the Veteran's statement that he has a lung disorder from working on a flight deck breathing in JP5; from "working a detachment in Incirlik, Turkey during theater of Operation Provide Comfort being exposed to JP5 to cut down sand blowing and an array of pesticides for sand fleas"; from shots with untested vaccinations; and from...sleeping in a berthing area with known asbestos. The referenced statement from the Veteran was submitted with his December 2012 VA Form 9 (Appeal to [the Board]). The Veteran was afforded a VA examination in August 2015 and a Respiratory Conditions DBQ was completed. Under the diagnosis section, no response was provided. It was noted that the Veteran required daily inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication. It was noted that the Veteran did not show up for a pulmonary function test (PFT) (though the Board notes that the results of earlier tests during the appeal period are of record). The examiner stated that "[t]here is no object[i]ve medical records of evidence to substantiate a diagno[]sis of a respiratory condition." The examiner referenced that clinical examination "evidences lungs to be clear to auscultation" and August 2015 chest radiological examination results that noted no acute cardiopulmonary disease. The radiological results, however, also referenced pleural thickening. In addition, as referenced by the April 2015 Board remand, a September 2009 VA examination report noted a diagnosis of asthma. VA treatment records of record included a March 2010 VA pulmonary consult note that noted that the Veteran "presents today for evaluation of chronic cough. For the last 15 years he has had episodes of cough that last nearly a month" and that included an impression of "Cough. While etiology not definitively known at this point, feel most likely etiology is poorly controlled reactive airway disease" A July 2012 VA treatment record noted the results of a July 2012 chest CT as showing "[s]ignificant lobular air-trapping in the lower lobes suggestive of small airways disease such as asthma." The most recent VA treatment record of record to include the Veteran's medical history (dated in September 2015) listed chronic cough. The Veteran also referenced in a statement accompanying the December 2012 VA Form 9 that an MRI showed granulomatous lung disease, though it does not appear that such is shown in the VA treatment records of record. Upon review, the Board finds that remand is required for a new VA examination and opinion, as outlined further in the remand directives below. While the August 2015 VA examiner found that there was "no object[i]ve medical records of evidence to substantiate a diagno[]sis of a respiratory condition," the opinion did not reference or discuss the other evidence of record, to include that discussed above, that referenced possible respiratory disorders. As such, on remand, the opinion requested will be asked to address any respiratory disorders present during the appeal period (dating to approximately February 2009). In addition, the April 2015 Board remand requested development to determine, essentially, if the Veteran would have been exposed to asbestos during active service. The Veteran's in-service exposure to asbestos is conceded, which is based on the Veteran's DD 214 reflecting a primary specialty of AT (Aviation Electronic Technician), which according to a table in the VA Adjudication Procedures Manual (M21-1) corresponds to a "probable" exposure to asbestos. See M21-1, Part IV, Subpart ii, 1.I.3.d. IV. Thoracic Spine Disorder The Board remanded this claim in April 2015. The Board stated that a negative September 2009 VA opinion addressing direct service connection was inadequate and based on the parenthetical comment and Court case cited, this was apparently based on the examiner not considering the Veteran's report of in-service injury. The Board stated that "[i]t is also unclear whether the VA examiner considered the Veteran's statements that he had multiple falls in boot camp, he fell down stairs in 1988, and was involved in a car accident." The relevant remand directive requested a VA opinion "to determine the etiology of [the Veteran's] thoracic spine disorder." The directive also stated that "[i]n providing this opinion, the examiner should specifically acknowledge the [STRs] reflecting treatment for lower back pain after lifting weights in November 1991, the Veteran's motor vehicle accident that occurred in March 1991, as well as his reported history of multiple falls and falling down stairs during service." The Veteran was afforded a VA examination in August 2015 and a Back Conditions DBQ was completed. Under the medical history section, it was noted that the Veteran reported being in a motor vehicle accident. The examiner provided a negative opinion stating that "Veteran's cur[r]ent complaint of thoracic back pain were not incurred in or caused by military service or related to any inservice disease, event or injury." A rationale was provided, which included the following: "[t]here is no medial nexus establishing causality between current complaints and mi[l]ilitary service. No residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service." The AOJ subsequently requested an addendum opinion, stating in their exam request that "[p]lease return to VA medical examiner to answers [the Board's] question. The examiner did not discuss the specific treatment or events in the STR[s] that may have led to his current diagnosis of thoracic arthritis, and finally the examiner did not provide the requested etiology for thoracic arthritis." An additional VA opinion was provided in May 2016. This stated that "STR[s] do not evidence any specific treatment or events that may have led to his current diagnosis of thoracic arthritis," referenced was made to the November 1991 STR and it was stated that "[t]here was no objective medical records[] of evidence in regard to the thoracic spine." The examination also stated that "[d]egenerative arthritis is a part of the normal aging process," though no explanation was offered for such conclusion. Upon review of the provided opinions, such did not substantially comply with the relevant April 2015 Board remand directive and remand is therefore required for a new VA opinion, as outlined in the relevant remand directives below. Stegall v. West, 11 Vet. App. 268 (1998). As referenced, the relevant April 2015 Board remand directive stated that "[i]n providing this opinion, the examiner should specifically acknowledge" certain STRs and reported incidents. The May 2016 opinion did acknowledge and discuss the November 1991 STR, but neither opinion referenced or discussed, as requested by the Board, "the Veteran's motor vehicle accident that occurred in March 1991, as well as his reported history of multiple falls and falling down stairs during service." As such, the provided opinions did not reference or discuss these specifically requested topics and therefore did not substantially comply with the remand directive. V. TDIU In April 2015, the Board raised the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) as "part and parcel" of the Veteran's right and left knee disabilities increased rating claims that were on appeal. A June 2015 rating decision granted entitlement to a TDIU, effective January 1, 2014. The Veteran's right and left knee disabilities increased rating claims that are on appeal, however, date to the earlier February 4, 2009 date of claim and assigned effective date for the grant of entitlement service connection. The record also included an assertion from the Veteran that he was prevented from securing or following any substantially gainful occupation, in part, due to his left and right knee disabilities prior to January 1, 2014. See September 2013 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) (dated March 2015 in VBMS, but date stamped September 2013, and with the Veteran reporting that he became too disabled to work in December 2001). As such, the issue of entitlement to a TDIU prior to January 1, 2014 based on the Veteran's right and left knee disabilities remains on appeal. This issue is inextricably intertwined with the development being requested on remand, to include as to the request to associate any relevant fee basis records in VA custody and the potential Social Security Administration (SSA) records, which are discussed further below. See Harris v. Derwinski, 1 Vet. App. 180 (1991). This issue therefore must also be remanded. VI. Manlincon Issues A rating decision dated in June 23, 2010 denied, as relevant, entitlement to service connection for hearing loss, sleep apnea and chronic fatigue syndrome. A May 3, 2011 notice of disagreement (NOD) was submitted as to the sleep apnea issue (and also to a denial of service connection for PTSD, which was subsequently granted by the AOJ). A May 24, 2011 NOD was submitted that stated that "[p]lease accept this letter as the [V]eteran's [NOD] with all remaining issues in the June 23, 2010 rating decision" and that "[w]ith the submission of this [NOD, the Veteran] will have properly appealed all issues contained within the June 23, 2010 rating decision." The remaining issues, beside the sleep apnea issue, that were denied in the June 2010 rating decision were entitlement to service connection for hearing loss and chronic fatigue syndrome (the Board notes that the rating decision also granted entitlement to service connection for three claims; such were full grants of the benefits sought and the May 2011 NODs did not express disagreement as to the assigned effective dates or disability ratings). The AOJ acknowledged receipt of the Veteran's NODs in a May 2011 letter to the Veteran. In April 2015, the Board referenced this situation in the Introduction and stated that the AOJ "appears to be in the process of taking action in response" to the NODs and did not remand the issues for issuance of a Statement of the Case (SOC), but "reminded" the AOJ of the May 2011 letter to the Veteran. The Board notes that when a NOD has been filed with regard to an issue and a SOC has not been issued, the appropriate Board action is to remand the issue to the AOJ for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Following the April 2015 Board remand, it does not appear that the AOJ has taken any action in regards to the May 2011 NODs and such are not currently recognized in the electronic Veterans Appeals Control and Locator System (VACOLS). As such, the Board finds that remand of these issues (entitlement to service connection for a bilateral hearing loss disability, sleep apnea and chronic fatigue syndrome) is required for the issuance of a SOC. VII. Outstanding Records While on remand, all outstanding VA treatment records must be obtained. In addition, various VA treatment records referenced fee basis record as being scanned into VistA (the Veterans Information Systems and Technology Architecture); any such records are not currently of record and any relevant records must be associated with the record on remand. For example, a March 15, 2011 VA treatment referenced physical therapy records related to the Veteran's right knee and a June 24, 2014 VA treatment record referenced a June 2014 note from a neurosurgeon (a May 2014 VA treatment record referenced this as being related to the Veteran's back). Other VA treatment records referenced physical therapy records, to include dated as follows: January 13, 2011, January 19, 2011, May 3, 2011, November 16, 2011 (two records), May 31, 2012 and June 22, 2012. Also, an October 2010 VA treatment record referenced the Veteran's employment history as "currently unemployed" and "receives SSDI 2/2 knee," a reference to Social Security Disability Insurance. It does not appear that other records, or the Veteran or his representatives, referenced the Veteran as being in receipt of SSA disability benefits. As such, the Board cannot conclude, based upon the current record, that there are any relevant, outstanding records in the custody of the SSA. Thus, while on remand, the Veteran must be contacted to clarify whether he has been in receipt of (or applied for) SSA disability benefits related to any claims on appeal, to include his knees. If the Veteran responds affirmatively, attempt must be undertaken to obtain such records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him whether he has been in receipt of (or applied for) SSA disability benefits related to any claims on appeal, to include his knees. If the Veteran responds affirmatively, attempt must be undertaken to obtain such records. 2. Obtain all outstanding VA treatment records (the most recent VA treatment records of record are dated in September 2015). Associate with the record any relevant fee basis records that have been scanned into VistA (see the body of the remand for additional information). 3. Afford the Veteran an appropriate VA examination to determine the severity of his right and left knee disabilities. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. Further, the examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran. The examiner must either estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information or explain why they cannot do so. The examiner's determination in this regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). 4. Afford the Veteran a VA examination with respect to his claim for entitlement to service connection for a sinus disorder (to include sinusitis and nosebleeds/polyps). The examiner is asked to provide an opinion addressing the following: a. Identify any sinus disorders found during the appeal period (dating to approximately February 2009). While review of the entire claims folder is required, attention is invited to September 2009 head CT results noting chronic paranasal sinus disease. b. Whether there are any sinus signs or symptoms that cannot be attributed to any known clinical diagnosis. c. Whether it is at least as likely as not (50 percent or greater probability) that any sinus disorder present during the appeal period (dating to approximately February 2009) had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should specifically acknowledge the STRs reflecting treatment for upper respiratory infections with sinus congestion and/or red drainage on December 13, 1988, and January 5, 1989, and for sinus congestion with a clear nasal discharge, headaches, and tenderness over the right maxillary sinus on July 22, 1989; as well as any environmental exposures while serving in Southwest Asia. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. Afford the Veteran a VA examination with respect to his claim for entitlement to service connection for a respiratory disorder (to include bronchitis and asthma). The examiner is asked to provide an opinion addressing the following: a. Identify any respiratory disorders found during the appeal period (dating to approximately February 2009). While review of the entire claims folder is required, attention is invited to the evidence discussed in the body of the remand that referenced asthma and reactive airway disease, as well as the Veteran's report in a statement accompanying the September 2012 VA Form 9 that an MRI showed granulomatous lung disease. b. Whether there are any respiratory signs or symptoms, to include the chronic cough noted in the evidence of record, that cannot be attributed to any known clinical diagnosis. c. Whether it is at least as likely as not (50 percent or greater probability) that any respiratory disorder present during the appeal period (dating to approximately February 2009) had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should specifically acknowledge the STRs reflecting treatment for upper respiratory infections on December 13, 1988, and January 5, 1989, as well as any environmental exposures while serving in Southwest Asia, and the Veteran's statement that he has a lung disorder from working on a flight deck breathing in JP5; from "working a detachment in Incirlik, Turkey during theater of Operation Provide Comfort being exposed to JP5 to cut down sand blowing and an array of pesticides for sand flea"; from shots with untested vaccinations; and from sleeping in a berthing area with known asbestos (as noted in the body of the remand above, the Veteran's in-service exposure to asbestos has been conceded). All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 6. Obtain a VA opinion with respect to the Veteran's claim for entitlement to service connection for a thoracic spine disorder. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The medical professional must provide an opinion addressing the following: Whether it is at least as likely as not (50 percent or greater probability) that any thoracic spine disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should specifically acknowledge the STRs reflecting treatment for lower back pain after lifting weights in November 1991, the Veteran's motor vehicle accident that occurred in March 1991, as well as his reported history of multiple falls and falling down stairs during service. See September 2009 VA Examination Report; December 2012 Form 9 and Accompanying Statement (stating that "I have had multiple falls in service and in Bootcamp where my knees took priority over my back"); November 1988 STR (referenced falling on stairs), March 1990 STR (referenced falling down a ladder well); May 1990 STR (referencing a fall on a railroad track). All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 7. Issue a SOC with respect to the issues of entitlement to service connection for a bilateral hearing loss disability, sleep apnea and chronic fatigue syndrome. If, and only if, a substantive appeal is timely filed, the issue(s) should be certified to the Board. 8. After completing the requested actions, readjudicate the claims in light of all pertinent evidence. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).