Citation Nr: 18152041 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 13-24 605 DATE: November 20, 2018 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1970 to January 1972, with service in Vietnam. His discharge certificate shows that he was awarded the Purple Heart Medal. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. In September 2016, these matters were remanded for additional development. The September 2016 Board remand also included the issue of service connection for a nerve disability of the lower extremities. As an August 2018 rating decision granted service connection for small fiber polyneuropathy of the right and left lower extremities, that issue is no longer before the Board. 1. Entitlement to service connection for a right knee disability is remanded. The February 2018 VA medical examiner opined that it is less likely the Veteran’s right knee disability was incurred in or caused by service since “there is no mention of the knee issues connected with his service.” Instead, the examiner determined that it is possible the Veteran suffered from arthritic changes secondary to daily activities after service. The Board finds this opinion inadequate because the examiner failed to consider the Veteran’s statements that he experienced right knee pain in and since service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must address the Veteran’s competent and credible lay evidence). Although the examiner states that he reviewed the Veteran’s claims file, it does not appear that he considered the Veteran’s statements in reaching his opinions. Additionally, the examiner’s opinion is also based on an inaccurate factual premise because the Veteran’s service treatment records (STRs) include at least two notations of knee pain during service. The previous remand order also specifically noted that, with respect to combat veterans especially, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, and hardships of such service. See 38 U.S.C. § 115 (b); 38 C.F.R. § 3.304(d). Accordingly, an addendum opinion to ensure compliance with previous instructions is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for sleep apnea is remanded. The August 2017 VA medical examiner opined it is less likely that the Veteran’s sleep apnea began in or was otherwise caused by his service since he was not diagnosed with sleep apnea until 1996, more than 20 years after his active duty service. Additionally, his STRs were silent for typical symptoms of sleep apnea and he failed to have any of the important risk factors for obstructive sleep apnea: “[m]ilitary service or herbicide exposure is not a recognized risk factor.” Similar to the VA examiner discussed above, the Board finds that this examiner also failed to consider the Veteran’s testimony that he began having sleep problems at Fort Leonard Wood and that he was told during service that he was “snoring too loud to be out there.” Accordingly, an addendum opinion is necessary. The Board finds this opinion inadequate because the examiner failed to consider the Veteran’s statements that he experienced sleep apnea symptoms in and since service. See Dalton, 21 Vet. App. at 39-40; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to service connection for hypertension is remanded. The August 2017 VA medical examiner opined that the Veteran’s hypertension is not due to exposure to herbicide agents during service since there is “limited or suggestive evidence of a scientifically meaningful association of hypertension with agent orange exposure, indicating the evidence is not there to attribute hypertension to exposure to Agent Orange” and that, based on “available evidence based literature, hypertension has not been added to the list of conditions conceded by the Government to be related to Agent Orange exposure.” Although hypertension is not included in 38 C.F.R. § 3.309(e) as a disease associated with exposure to herbicide agents, the Veteran may nonetheless substantiate his claim under that theory of entitlement by competent evidence that his hypertension is related to such exposure. See Combee v. Principi, 4 Vet. App. 78 (1993). As the current record does not include an adequate medical opinion as to whether the Veteran’s hypertension is related to his exposure to herbicide agents in service, a remand is necessary. See Barr, 21 Vet. App. at 312. Additional Considerations The September 2016 Board remand order also noted that the medical evidence associated with the record was incomplete because the record did not include what would be the earliest available records of private or VA treatment the Veteran received for the disabilities on appeal. Specifically, the Veteran testified that he first sought postservice treatment for his right knee from the VA in 1973 or early 1974; that hypertension was diagnosed in approximately 1975; and that sleep apnea was first diagnosed in 1973 or 1974. Although requested, the Veteran did not identify such records. As these matters are being remanded anyway, the Veteran is STRONGLY ENCOURAGED to identify any relevant treatment records (and the earliest records available). The Board also noted that VA treatment records in September, October, and November 2013 note that outside medical records were scanned into VISTA imaging. To date, those records have not been obtained. As the Board does not have access to those electronic records, and because they are pertinent evidence and of record, they must be obtained. The matters are REMANDED for the following action: 1. The AOJ should ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for the disabilities on appeal since his discharge from service (records of which are not already associated with the claims file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation. He should also be requested to specifically identify when the disabilities on appeal were first diagnosed and the diagnosing physician and/or facility, and well as the identity of his primary care physician. With his cooperation (by providing releases), the RO should obtain for the record complete clinical records of all such evaluations and treatment. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 2. The AOJ should specifically determine the earliest date the Veteran sought VA treatment for the disabilities on appeal and obtain for the record copies of the complete clinical records of all VA treatment the Veteran has received. The AOJ should specifically obtain ANY RECORDS THAT WERE SCANNED INTO VISTA (noted above). 3. The AOJ should thereafter forward the Veteran’s record to the February 2018 examiner for review and an addendum opinion regarding the nature and likely cause of the Veteran’s right knee disability. The entire record must be reviewed by the examiner in conjunction with the examination. Based on review of the record, and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Identify any right knee disability by diagnosis. (b) Identify the likely cause of any (and each) right knee disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that it is related to the Veteran’s service/was incurred therein? If the answer is no, identify the cause considered more likely. In answering the above, the examiner should specifically address the following: • The Veteran’s receipt of a Purple Heart, which entitles him to relaxed evidentiary requirements afforded under 38 U.S.C. § 1154(b). • His May 2016 testimony that he injured his knee after a mortar round entered his bunker and caused pieces of his kneecap to be “chipped off” and that he first sought postservice treatment from VA in 1973 or early 1974. • A January 1971 STR noting the Veteran fell and had pain in his knee. • An August 1971 STR which confirms he bumped his knee during service; a possible strain was diagnosed. 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. The AOJ should forward the Veteran’s record to the August 2017 examiner for review and an addendum opinion regarding the nature and cause of his hypertension and sleep apnea. The Veteran’s claims folder must be made available to the examiner. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Is it at least as likely as not (a 50% or better probability) that the Veteran’s hypertension either began during or was otherwise caused by his military service, to include as due to exposure to herbicides in service? The examiner is instructed that the fact that hypertension is not a presumptive disability is NOT, by itself, an adequate explanation for a negative opinion. (b) Is it at least as likely as not (a 50% or better probability) that the Veteran’s sleep apnea either began during or was otherwise caused by his military service? In answering the above, the examiner should specifically comment on the Veteran’s testimony that he began having sleeping problems and symptoms during service and was told during service that he was “snoring too loud to be out there” and that sleep apnea was first diagnosed in 1973 or 1974. The examiner is asked to comment as necessary on the article submitted in support of the Veteran’s claims. 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.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Matta, Counsel