Citation Nr: 20005178 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 18-28 294 DATE: January 22, 2020 REMANDED Entitlement to a disability rating exceeding 50 percent prior to April 11, 2017 for posttraumatic stress disorder (PTSD) with secondary major depressive disorder and alcohol use disorder is remanded. Entitlement to a disability rating exceeding 30 percent for migraine headaches is remanded. Entitlement to a disability rating exceeding 20 percent for a low back disability beginning September 27, 2014 is remanded. Entitlement to a disability rating exceeding 10 percent for a low back disability prior to September 27, 2014 is remanded. Entitlement to a disability rating exceeding 20 percent for right shoulder impingement syndrome is remanded. Entitlement to a disability rating exceeding 20 percent for left shoulder impingement syndrome status post arthroscopy is remanded. Entitlement to a disability rating exceeding 10 percent for right knee chondromalacia and patellofemoral syndrome is remanded. Entitlement to a disability rating exceeding 10 percent for left knee chondromalacia and patellofemoral syndrome status post arthroscopy surgery is remanded. Entitlement to a disability rating exceeding 10 percent for a sprained right ankle with synovitis and ligamentous weakness is remanded. Entitlement to a compensable evaluation for left knee and left shoulder surgical scars is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 1, 2013 and or on or after April 11, 2017 is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1986 to April 1997 and from May 2009 to May 2010 in the Marine Corps and Army National Guard including service in Iraq. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Records from the Social Security Administration (SSA) were received into the Veteran’s claims file in July 2015, and they indicate that the Veteran’s claim for social security disability benefits was denied. However, since that time, VA has received copies of correspondence indicating the Veteran has since been granted social security disability benefits. See, e.g., Veteran’s February 2018 correspondence to U.S. Senator John Cornyn (received by VA in April 2018). On remand, the Agency of Original Jurisdiction (AOJ) should attempt to locate all outstanding relevant records including records from SSA relating to the Veteran’s disability claims. In addition to the above, the Board finds that a remand of the Veteran’s appeal is necessary to ensure that the VA examinations of records are adequate. In particular, the Board finds that the negative nexus opinions from the July 2015 VA examiner in regard to the Veteran’s bilateral hip and obstructive sleep apnea disabilities are inadequate. The examiner indicated that the Veteran’s disabilities were not the result of the Veteran’s gulf war service and indicated that the disabilities had clear etiologies and diagnoses. However, the examiner included no discussion of whether the pathophysiology of the relevant symptoms is partially understood based on the particular facts of this Veteran’s case. See 38 C.F.R. § 3.317. Additionally, while the examiner indicated that (1) the Veteran’s service-connected PTSD did not cause or aggravate obstructive sleep apnea and that (2) the Veteran’s service-connected back disability did not cause his hip disabilities, the examiner did not fully address whether the Veteran’s service-connected disabilities have caused or aggravated (temporarily or permanently) the Veteran’s hip disabilities or obstructive sleep apnea. Additionally, the VA examiner did not fully address whether the Veteran’s disabilities were at least as likely as not directly related to the Veteran’s documented complaints of sleep difficulties and musculoskeletal complaints during the Veteran’s military service. On remand, the AOJ should obtain addendum opinions from VA examiners addressing these deficiencies. The Board also observes that the Veteran has not had examinations to assess the current severity of his bilateral knee, bilateral shoulder, low back, and right ankle disabilities since 2015. On remand, the AOJ should also afford the Veteran an opportunity to attend current VA examinations of the severity of these conditions. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records to include any outstanding records from the Social Security Administration relating to the Veteran’s claims for disability benefits. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding records with the Veteran’s claims file, the AOJ should afford the Veteran an examination(s) with an appropriate examiner(s) of the Veteran’s obstructive sleep apnea and bilateral hip disabilities. The AOJ should provide the examiner with a complete copy of the claims file to include this remand order. The AOJ should ensure that the examiner(s) follows these directives: (a.) The VA examiner(s) should identify all current disabilities associated with the Veteran’s obstructive sleep apnea and disabilities of the hips to include arthritis and hip pain. (b.) For each current disability identified, the examiner(s) should opine whether the disability was at least as likely as not (50 percent or greater probability) caused by the Veteran’s military service to include documented reports of sleeping difficulties, joint problems, and symptoms affecting the back and lower extremities in the Veteran’s service treatment records. The examiner(s) should explain why or why not. The examiner should discuss and consider the Veteran’s statements and third-party statements about the onset and development of his symptoms over time. (c.) In regard to any diagnoses of arthritis of the hips, the VA examiner should opine whether it is at least as likely as not that the Veteran’s arthritis manifested within one year of a period of active duty service. (d.) For each current disability identified, the examiner(s) should opine whether the disability was at least as likely as not worsened beyond normal progression (aggravated temporarily or permanently) by the Veteran’s service-connected disabilities including PTSD, headaches, bilateral shoulder disabilities, bilateral knee disabilities, tinnitus, a low back disability, left ulnar nerve neuropathy, a right ankle disability, allergic rhinitis, and associated scarring and pain. (e.) In regard to obstructive sleep apnea and all symptoms affecting the hips, the VA examiner(s) should opine as to whether the etiology and the pathophysiology of the symptoms is partially understood. If either the etiology or pathophysiology is inconclusive, the examiner should state so. These opinions must be based on the individual veteran’s circumstances rather than the illnesses as they are understood in the general public. (f.) If an examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion 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). 3. After associating all outstanding records with the Veteran’s claims file, the AOJ should also afford the Veteran examinations with an appropriate examiner(s) to assess the current severity of his service-connected disabilities of the knees, shoulders, lower back, and right ankle. The AOJ should provide the examiners with a complete copy of the claims file to include this remand order. The AOJ should ensure that the examinations address the following: (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (b.) If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. (c.) If it is not possible to provide a specific measurement 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). 4. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives.   After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.