Citation Nr: 18156415 Decision Date: 12/10/18 Archive Date: 12/07/18 DOCKET NO. 16-51 001 DATE: December 10, 2018 ORDER The claim of entitlement to service connection for sleep apnea is reopened; to this extent, the appeal is granted. The claim of entitlement to service connection for gastroesophageal reflux disease (GERD) is reopened; to this extent, the appeal is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to exposure to in-service environmental toxins during the Persian Gulf War, is remanded. Entitlement to service connection for a gastrointestinal disorder, to include GERD and hiatal hernia, to include as secondary to exposure to in-service environmental toxins during the Persian Gulf War, is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. REFERRED The issue of entitlement to service connection for a gall bladder removal, to include as secondary to exposure to in-service environmental toxins during the Persian Gulf War, was raised in an October 2016 statement and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. An October 2012 rating decision denied entitlement to service connection for sleep apnea on the basis that there was no evidence in service of complaints, treatment, or a diagnosis of sleep apnea. The Veteran was notified of that decision but did not appeal that decision. 2. An October 2016 VA Form 9 indicating the Veteran is claiming that his in-service injury related to sleep apnea was exposure to environmental toxins during the Persian Gulf War, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim of service connection for sleep apnea. 3. The October 2012 rating decision denied entitlement to service connection for GERD on the basis that there was no evidence in service of complaints, treatment, or a diagnosis of GERD. The Veteran was notified of that decision but did not appeal that decision. 4. The October 2016 VA Form 9 indicating the Veteran is claiming that his in-service injury related to GERD was exposure to environmental toxins during the Persian Gulf War, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim of service connection for GERD. CONCLUSIONS OF LAW 1. The October 2012 rating decision, which denied the Veteran’s claims of entitlement to service connection for sleep apnea and GERD, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the October 2012 rating decision is new and material, and the claim of entitlement to service connection for sleep apnea is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. The evidence received since the October 2012 rating decision is new and material, and the claim of entitlement to service connection for GERD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1990 to January 1992. His DD Form 214 shows that he received the Southwest Asia Service Medal. This case comes before the Board of Veterans’ Appeals (Board) on appeal of March 2014 (implementing Board decision granting service connection for bilateral knee disabilities) and August 2014 (denied reopening of service connection) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). As described in the findings of fact and conclusions of law, the Board is reopening the claims of entitlement to service connection for sleep apnea and GERD. An August 2014 VA examination report reveals a diagnosis of hiatal hernia. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the reopened claim is being recharacterized as a claim of entitlement to service connection for a gastrointestinal disorder, to include GERD and hiatal hernia. In a May 2018 rating decision, the RO denied service connection for right ankle trouble, left ankle trouble, and bilateral flat feet. In July 2018, the Veteran filed a timely notice of disagreement with the three denials in the May 2018 rating decision. According to the electronic Veterans Appeals Control and Locator System (VACOLS), the RO has acknowledged the receipt of the notice of disagreement and additional action is pending. Thus, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a notice of disagreement had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action on the NOD is pending at the RO, Manlincon is not applicable in this case and the issues of entitlement to service connection for right ankle trouble, left ankle trouble, and bilateral flat feet are not before the Board. REASONS FOR REMAND In a November 2014 statement, the Veteran reported that he was treated at a VA facility in 1993 and 1994 for symptoms related to his current disabilities of GERD and sleep apnea. The AOJ should ask the Veteran to identify the VA facility where he was treated in 1993 and 1994 and attempt to obtain records from any identified facility for those years. The AOJ last obtained records from the Memphis VA Medical Center in May 2018. The AOJ should obtain any additional records from the facility since May 2018. A May 2002 VA treatment record reflects that the Veteran was treated at Methodist Emergency Room earlier that month for GERD. The AOJ should attempt to obtain those treatment records. The Veteran essentially alleges that his in-service pharyngitis and the recommended screening for Graves’ disease noted during the separation examination were the initial manifestations of his sleep apnea. An August 2014 VA examiner did not explicitly address this theory of entitlement. Therefore, another VA examination is necessary. The Veteran asserts that his in-service gastrointestinal symptoms related to sea sickness were the initial manifestations of his GERD. The August 2014 VA examiner did not explicit opine on whether the GERD was related to the in-service gastrointestinal symptoms. Furthermore, a medical opinion on hiatal hernia is necessary. Thus, another VA examination is warranted. The last examination report for the knees, conducted in August 2017, reflects that there was no pain on passive range of motion testing, but the actual range of motion from the testing of passive motion was not reported. See 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Moreover, an April 2018 VA treatment record reveals a decrease in range of motion compared to the active range of motion testing at the August 2017 VA examination. Accordingly, a new VA examination to determine the current severity of these service-connected disabilities. See Correia, 28 Vet. App. at 169-70. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his knee disabilities, GERD, and sleep apnea, to include the VA facility where he was treated in 1993 and 1994 for symptoms related to GERD and sleep apnea, and obtain any identified treatment records. Ask the Veteran to complete a VA Form 21-4142 for Methodist Emergency Room. Make two requests for the authorized records from Methodist Emergency Room, unless it is clear after the first request that a second request would be futile. If the Veteran identifies the location of the VA facility where he received treatment in 1993 and 1994, obtain the Veteran’s VA treatment records for the period from January 1993 Obtain the Veteran’s VA treatment records from the Memphis VA Medical Center for the period from May 2018 to the present. 2. After the development in 1 is completed, schedule the Veteran for an examination of the current severity of his bilateral knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral knee disabilities alone and discuss the effect of the Veteran’s bilateral knee disabilities on any occupational functioning and activities of daily living. 3. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any gastrointestinal disorder, to include GERD and hiatal hernia. For all gastrointestinal disorders, to include GERD and hiatal hernia, the examiner must opine on whether it is at least as likely as not that the current disorder is related to an in-service injury, event, or disease, including in-service sea sickness and in-service exposure to environmental toxins during the Persian Gulf War. 4. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of sleep apnea. The examiner must opine on whether it is at least as likely as not that the sleep apnea is related to an in-service injury, event, or disease, including in-service pharyngitis, in-service exposure to environmental toxins during the Persian Gulf War, and the recommended screening for Graves’ disease noted during the December 1991 separation examination. 5. Thereafter, the RO should readjudicate the issues on appeal with consideration of all evidence of record. If any benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel