Citation Nr: 18146379 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-27 316 DATE: October 31, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for a left knee condition is remanded. Entitlement to a disability rating in excess of 10 percent for a right knee condition is remanded. Entitlement to service connection for asthma (also claimed as breathing issues) is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for sleep disturbances is remanded. Entitlement to service connection for a left shoulder injury is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a neck condition with C4-C5 fusion is remanded. Entitlement to service connection for dizziness (also claimed as balance issues) is remanded. Entitlement to service connection for a head injury (also claimed as loss of memory and concentration) is remanded. REASONS FOR REMAND The Veteran had active service from November 1989 to March 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in September 2013 and September 2016. The Veteran attended a hearing at his then local Regional Office (RO) in April 2015. He also testified via video conference at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2018. Transcripts of both hearings are associated with the claims file. 1. Entitlement to a disability rating in excess of 10 percent for a left knee condition; Entitlement to a disability rating in excess of 10 percent for a right knee condition; Entitlement to service connection for asthma (also claimed as breathing issues); Entitlement to service connection for sleep apnea; and Entitlement to service connection for sleep issues are remanded. Regarding the claims listed immediately above, the Veteran submitted a timely notice of disagreement (NOD) with a September 2016 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case or such other action as may be required by VA regulation. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 2. Entitlement to service connection for a low back condition; Entitlement to service connection for a left shoulder injury; Entitlement to service connection for a neck condition with C4-C5 fusion; Entitlement to service connection for dizziness (also claimed as balance issues); and Entitlement to service connection for a head injury (also claimed as loss of memory and concentration) are remanded The Board cannot make a fully-informed decision on the issues listed above without additional opinions for the following reasons. As to the issue of entitlement to service connection for a low back condition, the Veteran has submitted additional evidence including articles regarding back and spine conditions and military service. An addendum opinion considering this additional evidence is required. As to entitlement to service connection for a left shoulder condition, the only opinion as to direct service connection comes from the July 2013 VA examination. As part of the rationale for the 2013 opinion, the examiner stated that records of the 2004 surgical labral tear repair described by the Veteran were unavailable. However, those records appear to have been and continue to be part of the evidence of record in this case. Consequently, an addendum opinion that includes a review of those records is required to adjudicate that issue. As to the issue of entitlement to service connection for a neck condition, the Board observes that the Veteran appears to have a similar diagnosis during service in May 1990 and after service according to post-service radiology reports. The Veteran’s service treatment records from May 1990 include a radiology report that documents a straightening of the normal cervical lordosis in his cervical spine. An August 2012 cervical spine MRI also documents the loss of normal cervical lordosis. Given the similarity of these two diagnoses, the Board requires an opinion clarifying whether they are the same condition. As to the issue of dizziness or balance issues and the memory loss and loss of concentration symptoms that the Veteran associates with in-service head traumas, the Board requires further guidance as to whether, taken together, these are “neurological signs or symptoms” or “neuropsychological signs or symptoms” of an undiagnosed or medically unexplained chronic multi-symptom illness due to exposure in the Southwest Asia Theater. The Board is mindful that the February 2016 examiner has considered this question with regard to at least some of these symptoms and that some of the symptoms claimed by the Veteran have presented with either inconsistent or non-existent laboratory findings. However, the definition of medically unexplained chronic multisymptom illness at least embraces the possibility that such illness may be out of proportion to physical findings and have inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Additionally, the Veteran has raised the theory that at least some of these symptoms may be related to his service at Fort McClellan, where he was stationed in November and December of 1989, a site which he claims was used to store toxic chemicals, biological agents, and redioactive materials. Appropriate development regarding any possible exposures during to this time at Fort McClellan should be accomplished, and an appropriate opinion obtained if those exposures are substantiated. The matters are REMANDED for the following actions: 1. Send the Veteran and his attorney a statement of the case that addresses the issues of entitlement to service connection for asthma, sleep apnea, and other sleep disturbances, and entitlement to an increased rating for his right and left knee disabilities, or otherwise take such actions as may be required by VA regulations in response to the Veteran’s September 2017 NOD. If the Veteran perfects an appeal by submitting a timely VA Form 9, or otherwise takes necessary procedural steps to bring the issues in his September 2017 NOD to the Board under recent VA regulations, the issues should be returned to the Board for further appellate consideration. 2. Undertake any necessary development to assist the Veteran in substantiating his theory of exposure to toxic chemical, biological, or radioactive substances during his time at Fort McClellan in November-December 1989. In the event that his exposure to these substances can be substantiated, obtain an opinion as to whether it is at least as likely as not (50 percent or greater probability) that dizziness or balance condition and his memory and concentration difficulties were caused by or are otherwise related to these exposures. 3. Obtain addendum opinions from an appropriate clinician regarding the following conditions. In the event that any of the requested opinions cannot be provided, the Veteran should be scheduled for an additional examination. (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back condition was caused by or related to his service. The opinion should be accompanied by a complete rationale and should be provided after a consideration of the evidence recently added to the record, including the Veteran’s testimony in July 2018 and the articles submitted regarding back pain, spinal conditions and military service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left shoulder condition was caused by or related to his service, to include his in-service left shoulder injury. A complete rationale should be provided, and the examiner’s attention is particularly called to the October 2004 surgical repair of the Veteran’s left shoulder, the records of which are associated with the claims file. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s neck condition was caused by or related to his service. A complete rationale should be provided, and the clinician’s attention is particularly called to the similarity of the description of the Veteran’s cervical spine lordosis condition in May 1990 and in the August 2012 post-service MRI report. (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s dizziness or balance condition and his memory and concentration difficulties collectively constitute “neurological signs or symptoms” or “neuropsychological signs or symptoms” of an undiagnosed or medically unexplained chronic multi-symptom illness due to exposure in the Southwest Asia Theater. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel