Citation Nr: 18160776 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 11-28 250 DATE: December 27, 2018 ORDER Entitlement to service connection for a cervical condition is granted. REMANDED Entitlement to service connection for a sleep condition, to include as due to an undiagnosed illness is remanded. Entitlement to a compensable rating for dry skin is remanded. FINDING OF FACT The Veteran’s cervical arthritis was caused by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical condition have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 to August 1979 and from February 2003 to April 2004, to include service in Southwest Asia. The Veteran testified before the undersigned Veterans Law Judge at a January 2017 hearing before the Board of Veterans’ Appeals (Board). A transcript of the proceeding has been associated with the claims file. The Board remanded service connection for sleep condition, and denied the claims for service connection for a cervical condition and entitlement to a compensable rating for dry skin in March 2017. The Board remanded the sleep condition in November 2017. The Veteran appealed the March 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2018 Joint Motion for Remand (JMR), the Court vacated the March 2017 decision and remanded the issues to the Board. The Veteran waived regional office review of additional evidence and waived any remaining time to submit additional evidence or arguments in September 2018. Entitlement to service connection for a cervical condition Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed condition, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Certain diseases are considered chronic and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). In July 2004 private treatment notes, the medical provider noted an x-ray revealed some arthritic changes and probable mild arthritis, following complaints of low back pain. See 38 C.F.R. § 4.59. Imaging test performed in July 2004 noted a cervical spine within normal limits. In September 2009 private treatment notes, a MRI found multilevel spondylitic changes; and November 2009 private treatment notes document cervical disc disease. The Veteran underwent a VA examination in February 2012, and the VA examiner rendered a negative nexus opinion. The Veteran separated from active duty in April 2004. July 2004 private treatment records provided evidence of a chronic disability of arthritic changes. The same records also provided evidence of a cervical spine within normal limits. The Board finds the evidence is in relative equipoise as to whether the Veteran had a diagnosis of cervical arthritis with pain in July 2004, within one year of separation from active duty. Id. The Board notes there is no affirmative evidence to rebut finding the Veteran’s had cervical arthritis in July 2004. Accordingly, the Board finds the evidence is in favor of finding the Veteran had diagnosed cervical arthritis to compensable degree within one year of separation from active service and service connection is warranted. 38 C.F.R. §§ 3.307, 3.309(a). REASONS FOR REMAND 1. Entitlement to service connection for a sleep condition, to include as due to an undiagnosed illness is remanded. In February 2012, in connection with his sleep condition, the Veteran noted experiencing environmental exposures from sand, dust, oil fires, and pesticides during deployment in 2004. During an April 2012 hearing before a decision review officer for a sleep condition, the Veteran also references environmental exposures. Therefore, the Board finds that the Veteran asserted service connection due to an undiagnosed illness as a theory of entitlement. The Veteran was afforded VA opinions in May 2017 and November 2017. The examiners provided negative nexus opinions, but neither opinion provided a known etiology. An addendum opinion is necessary to determine if the Veteran’s sleep condition is due to an undiagnosed illness. 2. Entitlement to a compensable rating for dry skin is remanded. The Veteran was last afforded VA examinations in October 2010 and December 2012 regarding his skin disability. In January 2017, during the Board hearing, the Veteran reported itching over his entire body. During the previous examinations he never reported such symptomatology, and, therefore, the Board finds the Veteran has asserted his disability has worsened and the previous examinations are no longer adequate. A Veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 4000 (1997); Caffey v. Brown, 6 Vet. App. 377 (1994). Therefore, he is entitled to a new examination to evaluate whether the skin disability has increased to warrant a compensable rating. The matters are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to the claims, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. Afford the Veteran a skin examination with an appropriate examiner who has reviewed the claims file in conjunction with the examination. The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicating in that questionnaire must be addressed. All opinions must be supported by a detailed rationale. 3. Forward the Veteran’s claims file to a qualified VA medical professional in order to an obtain addendum opinion as to the current nature and etiology of the sleep condition. A full medical history should be documented in the examination report. The claims file should be made available to the examiner. If needed, a new VA examination may be conducted. The Veteran’s lay contentions must be addressed in full. The examiner is asked to address the following: (a.) Provide a current diagnosis for the Veteran’s conditions which may be manifested by a sleep condition at any time during the period on appeal (since November 2008); (b.) For each diagnosed disorder, is it at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during or is otherwise related to any event or injury during active duty; (c.) If a nexus to service cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis; and (d.) If, after reviewing the claims file, it is determined that the Veteran’s disability pattern is consistent with either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during active duty, to include his service in Southwest Asia. In answering all questions, please articulate the reasoning underpinning the conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support the opinion, and (2) explain how that evidence justifies the opinion. Simply providing potential causes of the conditions is not adequate without connecting them to the evidence in the Veteran’s record. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel