Citation Nr: 1805123 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 941A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a sleep disability, to include sleep apnea. 2. Entitlement to service connection for a gastrointestinal disability, to include gastroenteritis. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a respiratory disability, to include allergic rhinitis. 5. Entitlement to service connection for a left ankle disability. 6. Entitlement to an initial rating in excess of 50 percent for adjustment disorder with anxiety. 7. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability. 8. Entitlement to an initial rating in excess of 10 percent for a right knee disability. 9. Entitlement to an initial rating in excess of 10 percent for a left knee disability. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from August 2007 to January 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) which established service connection for an adjustment disorder with anxiety; assigned a 30 percent rating for that disability; established service connection for lumbar sprain residuals; assigned a 20 percent rating for that disability; established service connection for right knee sprain residuals and left knee sprain residuals; assigned 10 percent ratings for those disabilities; effectuated the awards as of January 28, 2012; and denied service connection for sleep apnea, acute gastroenteritis, high blood pressure, allergic rhinitis, and left ankle sprain residuals. In November 2016, the Board increased the initial rating for the service-connected psychiatric disability from 30 percent to 50 percent disabling; denied service connection for sleep apnea, gastroenteritis, hypertension, allergic rhinitis, and a left ankle disability; and denied higher initial ratings for lumbar sprain residuals, right knee sprain residuals, and left knee sprain residuals. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In May 2017, the United States Court of Appeals for Veterans Claims granted the Parties' Joint Motion for Partial Remand and vacated those portions of the November 2016 Board decision which denied service connection for sleep apnea, gastroenteritis, hypertension, allergic rhinitis, and a left ankle disability, an initial rating in excess of 50 percent for the service-connected psychiatric disability, and higher initial ratings for the service-connected lumbar spine, right knee, and left knee disabilities; and remanded those issues to the Board for additional action consistent with the Joint Motion for Partial Remand. REMAND The Parties' May 2017 Joint Motion for Partial Remand determined that the October 2012 VA sleep apnea examination report was inadequate for rating purposes. The Board has no discretion and must remand the appeal for compliance with the United States Court of Appeals for Veterans Claims' May 2017 Order granting the Joint Motion for Partial Remand. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006) (duty to ensure compliance with United States Court of Appeals for Veterans Claims order extends to the terms of agreement struck by Parties that forms basis of Joint Motion for Remand). The Veteran asserts that service connection for a gastrointestinal disability is warranted as he was diagnosed with gastroenteritis during and following active service. The service medical records reflect that the Veteran was diagnosed with viral gastroenteritis. A November 2012 VA treatment record states that an assessment of "gastroenteritis, possible viral" was advanced. A July 2017 VA treatment record notes that the Veteran's "active problems" included gastroenteritis. The Veteran was last provided a VA gastrointestinal examination in October 2012. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA obtain an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the documented recurrent episodes of gastroenteritis, the Board finds that further VA gastrointestinal evaluation is needed. The Veteran asserts that service connection for hypertension is warranted as he exhibited elevated blood pressure readings during and following active service. The service treatment records show that the Veteran was found to exhibit elevated "isolated blood pressure" readings on multiple occasions. A November 2012 VA treatment record states that the Veteran exhibited a blood pressure reading of 139/78. An assessment of "positive orthostatic changes" was made and the Veteran was sent to the "local ER." Clinical documentation of the cited private treatment record is not of record. VA clinical documentation dated after August 2017 is not of record. Notations in the record indicate that the Veteran received a "non-VA care plan" in August 2017. Clinical documentation of the resulting private treatment is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran has not been provided a recent VA hypertension examination to determine whether he has hypertension and, if so, the disability's relationship to the documented in-service elevated blood pressure readings. The report of the October 2012 VA respiratory examination concurrently states that the Veteran had rhinitis and had never been diagnosed with rhinitis or any other nasal disability. Because of the conflicting examination findings, the Board finds that further VA respiratory evaluation is necessary. The report of the October 2012 VA ankle examination indicates that the Veteran sustained an in-service 2011 "acute left ankle sprain;" reported "a gradual onset of dull achy left ankle pain with no known mechanism of injury;" and concurrently exhibited "no objective evidence of painful [left ankle] motion," "localized tenderness or pain on palpation of joints/soft tissue of [the left] ankle," and a "normal bilateral orthopedic ankle examination today." The examiner did not provide a diagnosis for the left ankle pain and tenderness or address the left ankle symptoms' relationship, if any, to the documented in-service left ankle sprain. Because of the conflicting examination findings, the Board finds that further VA ankle evaluation is necessary. The report of a December 2017 VA psychiatric examination has been associated with the record. The Veteran has not been provided a supplemental statement of the case which addresses that examination report. The Veteran contends that higher initial ratings are warranted for the service-connected lumbar spine, right knee, and left knee disabilities. The Board observes that the Veteran was last provided a VA examination which addressed the lumbar spine and the knees in October 2012. Because of the elapse of over five years since the October 2012 VA examination, the Board finds that further VA spine and knee examinations are necessary to determine the current nature and severity of the service-connected lumbar spine and knee disabilities. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all post-service treatment of any sleep, gastrointestinal, hypertension, rhinitis, and left ankle disabilities and all treatment of service-connected psychiatric, lumbar spine, right knee, and left knee disabilities since August 2017, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record any VA medical records not already of record, including for treatment provided since August 2017. 3. Schedule the Veteran for a VA examination with a medical doctor to assist in determining the nature and etiology of any identified sleep disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all sleep disabilities found. If obstructive sleep apnea or other sleep disability is not diagnosed, specifically state that fact. (b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified sleep disability, to include sleep apnea, had its onset during active service or is related to any incident of service, including the documented in-service diagnoses of sleep apnea. 4. Schedule the Veteran for a VA gastrointestinal examination to assist in determining the nature and etiology of any identified gastrointestinal disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all gastrointestinal disabilities found. If a gastrointestinal disability is not diagnosed, specifically state that fact. (b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified gastrointestinal disability had its onset during active service or is related to any incident of service, including the documented in-service viral gastroenteritis. 5. Schedule the Veteran for a VA hypertension examination to assist in determining the nature and etiology of any identified hypertensive disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all hypertensive disabilities found. If hypertension is not diagnosed, specifically state that fact. (b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified hypertension had its onset during active service or is related to any incident of service, including the documented in-service elevated blood pressure readings. (c) Opine as to whether it is at least as likely as not (50 percent probability or greater) that hypertension manifested to a compensable degree within one year following separation from service. 6. Schedule the Veteran for a VA respiratory examination to assist in determining the nature and etiology of any identified rhinitis disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all rhinitis found. If rhinitis is not diagnosed, specifically state that fact, and reconcile that finding with other medical evidence of record. (b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified rhinitis had its onset during active service or is related to any incident of service, including the documented in-service respiratory symptoms. 7. Schedule the Veteran for a VA ankle examination to assist in determining the nature and etiology of any identified left ankle disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all left ankle disabilities found. If a left ankle disability is not diagnosed, specifically state that fact and reconcile that finding with the other medical evidence of record. (b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified left ankle disability had its onset during active service or is related to any incident of service, including the documented in-service left ankle sprain. 8. Schedule the Veteran for a VA spine examination to assist in determining the current severity of the service-connected lumbar spine disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the lumbar spine. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. (b) Indicate whether, and to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare-ups or with repeated use. (c) Specifically address the impact of the lumbar spine disability on the Veteran's vocational pursuits. (d) State whether or not any incapacitating episodes due to the lumbar spine disability have been shown, and if so, the frequency and duration. (e) State whether any ankylosis of the spine is shown. 9. Schedule the Veteran for a VA knee examination to assist in determining the current severity of service-connected right knee and left knee disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of the knees. The examiner should state whether there is any additional loss of knee function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. The examiner should state whether there is any recurrent subluxation or lateral instability of the knees, and if so, should opine as to the severity. The examiner should state whether there is any meniscal pathology or genu recurvatum shown. 10. Then readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).