Citation Nr: 18161208 Decision Date: 12/31/18 Archive Date: 12/28/18 DOCKET NO. 07-40 262 DATE: December 31, 2018 REMANDED Entitlement to service connection for osteoporosis of the femurs (claimed as bilateral leg disorders, other than of the knee) is remanded. Entitlement to service connection for a back disorder, to include osteoporosis of the thoracolumbar spine with compression fractures, is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a left shoulder disorder, to include degenerative joint disease is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a compensable rating for left knee arthritis is remanded. Entitlement to a compensable rating for right knee arthritis is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1982 to June 1982 and from January 2004 to March 2005. In September 2011 and May 2015, the Board remanded the issues for evidentiary development. Additional development is needed before a decision can be reached in this case. 1. Entitlement to service connection for osteoporosis of the femurs (claimed as bilateral leg disorders, other than of the knee) is remanded. Regarding the bilateral leg disorders claim, it is unclear from the medical evidence whether the Veteran’s diagnosed osteoporosis of the femurs is related to her military service or whether the disorder is attributable to early surgical menopause. An April 2017 VA examiner recently opined that the Veteran’s osteoporosis was at least as likely as not incurred during her active duty service, on the basis that the disorder was diagnosed shortly thereafter. This opinion, however, does not consider notations in the Veteran’s VA treatment records dated from July 2009 that indicate the disorder results from early surgical menopause. Given that the April 2017 opinion does not adequately address this evidence, an addendum opinion is needed to reconcile the conflicting medical conclusions. 2. Entitlement to service connection for a back disorder, to include osteoporosis of the thoracolumbar spine with compression fractures, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the back disorder claim. Despite the directives set forth in the May 2015 Board remand, the April 2017 examiner did not reconcile his opinion with the findings of prior VA examiners as to the etiology of the Veteran’s back disorder. The examiner opined that the Veteran’s osteoporosis of the thoracolumbar spine with secondary compression fractures of the thoracic spine (claimed as osteopenia of the back) was as likely as not incurred in service. However, the April 2017 examiner did not discuss a contrary July 2009 VA record that notes the Veteran’s osteoporosis resulted from early surgical menopause. An addendum opinion must be obtained to reconcile these conflicting medical conclusions and to ensure compliance with the prior Board remand. 3. Entitlement to service connection for hypertension is remanded. Similarly, there has not been substantial compliance with the May 2015 Board remand with regards to the hypertension claim. Specifically, the Board directed that an addendum opinion be obtained regarding whether there was clear and unmistakable evidence that hypertension preexisted service, and whether there was clear and unmistakable evidence that any preexisting hypertension was not aggravated by service. The April 2017 examiner opined that “it is as likely as not that there is clear and unmistakable evidence that her hypertension pre-existed service” and that “it is as likely as not that there is clear and unmistakable evidence that the Veteran’s pre-existing hypertension was not aggravated … during service.” In other words, the examiner’s opinion was phrased in terms of an equipoise standard (i.e. at least as likely as not) rather than a clear and unmistakable standard as required by the May 2015 remand instructions. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, a March 2012 VA examiner stated that risk factors for hypertension included personality traits such as hostile attitudes and impatience. On remand, an addendum opinion should be obtained to address whether hypertension was caused or aggravated by service-connected posttraumatic stress disorder and depressive disorder not otherwise specified. 4. Entitlement to service connection for obstructive sleep apnea is remanded. Regarding the claim for service connection for obstructive sleep apnea, there also has not been substantial compliance with the Board’s May 2015 remand directives. In addressing this issue, the examiner was specifically directed to consider the Veteran’s assertions that she snored during service and that others told her that she had pauses in her breathing while she slept. In opining against an in-service etiology of obstructive sleep apnea, the April 2017 examiner’s only rationale was that sleep apnea did not manifest until 2008. As the examiner failed to address the Veteran’s lay statements as required by the May 2015 remand instructions, another remand is required. Id. 5.-6. Entitlement to service connection for bilateral shoulder disorders is remanded. Regarding the claims for service connection for bilateral shoulder disorders, there also has not been substantial compliance with the Board’s May 2015 remand directives. Those instructions directed that the Veteran be provided a new in-person orthopedic examination, but the April 2017 examiner indicated that only an addendum opinion was provided. The examiner relied on the March 2012 VA examination in concluding that the Veteran did not have a current right shoulder diagnosis. With regard to a left shoulder disorder, the May 2015 Board remand directed the examiner to consider the Veteran’s reports of falling in her armor while in Iraq. However, in providing a negative etiological opinion, the examiner’s only rationale was that the service treatment records were silent for the condition. Therefore, another remand is required. Id. 7.-8. Entitlement to compensable ratings for arthritis of the bilateral knees is remanded. The March 2012 examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements or pain on weight-bearing testing. 9. Entitlement to a TDIU is remanded. A July 2016 decision of the Social Security Administration awarded the Veteran Social Security disability benefits based in part on her degenerative joint disease of the knees. When entitlement to a TDIU is raised in connection with an increased rating claim for one or more of those service-connected disabilities, the Board has jurisdiction over the issue because it is part of the claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the claim is included in the current appeal, and remand for development of the issue is appropriate. Id. The matters are REMANDED for the following action: 1. Undertake appropriate action to obtain any outstanding VA or private treatment records pertinent to the claims. 2. Provide the Veteran with appropriate Veterans Claims Assistance Act (VCAA) notice regarding the TDIU claim and request that the Veteran complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right and left femur osteoporosis was at least as likely as not incurred in active-duty service, or are related to any injury, event or disease during active-duty service. The examiner must discuss and reconcile the previous VA opinions of record, including the July 2009 opinion relating the disorder to early surgical menopause and the April 2017 VA opinion attributing osteoporosis to the Veteran’s active-duty service. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s osteoporosis of the thoracolumbar spine with secondary compression fractures of the thoracic spine (claimed as osteopenia of the back) was at least as likely as not incurred in active-duty service, or are related to any injury, event or disease during active-duty service. The examiner must discuss and reconcile the previous VA opinions of record, including the July 2009 opinion relating the disorder to early surgical menopause and the April 2017 VA opinion attributing osteoporosis to the Veteran’s active-duty service. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea was at least as likely as not was incurred in active-duty service, or is related to any injury, event or disease during active-duty service. The examiner must discuss the Veteran’s lay contentions, to include that she snored during service and that others told her that she had pauses in her breathing while she slept. See hearing transcript page 25. 6. Obtain an addendum opinion from an appropriate clinician regarding whether hypertension clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must also opine whether the Veteran’s hypertension is at least as likely as not proximately due to service-connected posttraumatic stress disorder and depressive disorder not otherwise specified, or aggravated beyond its natural progression by her service-connected psychiatric disabilities. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right or left shoulder disorder. The examiner must opine whether any shoulder disorder diagnosed since August 19, 2005 was at least as likely as not incurred in active-duty service, or related to an injury, event, or disease during active-duty service, including multiple falls, and heavy lifting. The examiner must discuss the Veteran’s lay contentions, to include reports of falling in her armor while in Iraq. The examiner must opine whether any arthritis or degenerative changes of the shoulders diagnosed since August 19, 2005 at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) were noted during service with continuity of the same symptomatology since service. If the examiner finds that the bilateral shoulder symptoms cannot be attributed to a diagnosed illness, he/she must opine whether there is affirmative evidence that the undiagnosed illness was not incurred during active service during the Gulf War, or whether the undiagnosed illness was caused by a supervening condition or event. If so, the examiner should describe the supervening condition or event. 8. Schedule the Veteran for an examination of the current severity of her arthritis of the knees. 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 arthritis of the knees alone and discuss the effect of the Veteran’s arthritis of the knees on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel