Citation Nr: 20006301 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 17-57 966 DATE: January 24, 2020 REMANDED Entitlement to service connection for a breathing disability is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable rating for headaches is remanded. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1978 to September 1998. By way of procedural history, the Board notes that this claim was last denied by the Board in a December 2018 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated September 2019, the Court granted a Joint Motion for Remand, vacated the Board decision, and remanded the case to the Board. 1. Entitlement to service connection for a breathing disability is remanded. With regard to the claim for service connection for a breathing disability, the Board finds that the Veteran has not been provided VA examinations with regard to this claim. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision still triggers the duty to assist if it indicates that the Veteran’s condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board finds that the Veteran’s claim for a breathing disability requires a VA medical examination. A review of the evidence of record shows that there is some evidence that various aspects of the Veteran’s active service, to include his tours in Kuwait may have caused his breathing disability, to include COPD. The Veteran has claimed, and he is competent to speak to being exposed to smoke from burn pits. Likewise, the Veteran is also competent to speak to shortness of breath and breathing issues. A such, as the evidence shows that the Veteran was exposed to potentially toxic smoke during service, and as there are current diagnoses of respiratory disabilities, VA’s duty to provide the Veteran a VA examination to assess the nature and etiology of such a condition has been triggered. In this regard, the Board also submits that there is also a private opinion obtained by the Veteran. The Veteran provided a private examination report from Dr. P. Y., dated September 2016, where the chiropractic physician, concluded, among other things, that the Veteran’s breathing disability to include COPD and bronchial asthma, was as likely as not, related to the Veteran’s exposure to burn pits during his active service in Kuwait. The Board, however, finds this opinion, while positive, to be incomplete, and cannot be dispositive of the claim. First, the Board notes that the examiner’s report fails to explicitly note any review of the Veteran’s claims file or medical history; as such the Board cannot afford probative weight to such conclusions without any evidence that such opinion was based on the relevant facts and medical history of the Veteran. Second, the examiner’s area of expertise seems to be in the field of chiropractic, and not respiratory disabilities. While, the examiner is, under Florida law, allowed to diagnose all ailments of the body, the Board finds that the claimed disability is so far outside the field of the private examiner’s specialty, that any etiological opinion to be of limited probative value, and certainly cannot be dispositive of the claim. However, while such examination is not dispositive of the claim, it does trigger the VA’s duty to afford the Veteran a VA examination to assess the nature and etiology of this condition. 2. Entitlement to service connection for a right shoulder condition is remanded. In the Court’s remand of the claim for a right shoulder condition, it was noted the pervious July 2015 examination, in which the last Board denial was based, was incomplete, as it was based on an unfounded factual premise. The Board agrees. In the July 2015 VA examination report, the VA examiner’s rationale for the negative finding was based entirely on the fact that the Veteran’s service medical record (SMRs) failed to demonstrate any evidence that the Veteran suffered from any right shoulder disability, treatment, or complaint during his active service. The Board, along with the Court, points that such evidence does exist that shows that the Veteran did in fact complain about pain in his right shoulder during his service. The Board points out that in an October 1981 medical note from the Veteran’s SMRs, the Veteran was noted to complain about a right shoulder pain, that resonated up to his neck. The Board finds that while such a single event does not show a chronic condition, it does call into question the factual premise in which the previous July 2015 VA examination was based. As such, this finding of fact renders such VA examination and opinion to be incomplete, and the Veteran must be afforded another VA examination to assess the nature and etiology of his right shoulder disability. The Board notes that the VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). 3. Entitlement to service connection for sleep apnea is remanded. The Veteran claims service connection for sleep apnea, as secondary to his breathing disability. The Board notes that throughout the claims period, the Veteran’s claimed sleep apnea has had some tacit connection to his breathing disability or respiratory disability; to include as indicated by the September 2016 private examination report. As such, the Board finds that such claim is inextricably intertwined with the claim for service connection for breathing disability. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for sleep apnea must also be remanded. 4. Entitlement to an increased rating for headaches and PTSD is remanded. With regards to the Veteran’s claimed of increased rating for this PTSD and headaches, the Board notes that the previous VA examinations assessing the nature and severity his conditions are considered incomplete. With regards to the Veteran’s claim for headaches, the Court, in its JMR, found that the VA examination in which the Board relied upon for denying a higher rating failed to address the Veteran’s lay contentions. To this end, the July 2015 VA examiner found that the Veteran’s headaches did not manifest with prostrating attacks of migraine headaches. However, close review of the Veteran’s lay reports, even during the VA examination note some evidence of prostrating attacks, to include claims of having to lay down and using compresses on his head to relieve attacks. As such, the Board finds that the July 2015 VA examination to be incomplete as it seemingly failed to discuss or consider such lay statements from the Veteran. With regards to the Veteran’s claim for an increased rating for a PTSD, the Board notes that the Court similarly found that the July 2015 VA examination was incomplete. Specifically, the VA examiner fails to address medical evidence which showed incidents of suicidal ideations during the claims period. The Court finds, and the Board agrees, that such symptom of suicidal ideations, while a single symptom, is a critical consideration when determining the functional impact of the Veteran’s PTSD and his rating. As such, the Board must find that previous VA examinations to be incomplete, and remand is required for the VA to afford the Veteran another VA examination to adequately assess the severity of his PTSD. In addition, the Board finds that the last VA examinations addressing either disability in 2016, are too temporally remote to properly represent the current severity of the Veteran’s service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain and associate with claims file any outstanding records pertinent to the claim. 2. After all pertinent records are part of the file, transfer this case to a VA examiner with expertise in the health effect of environmental toxins. The examiner should review the entire record, including all service and post-service treatment records, and the RO conceding the Veteran’s exposure to environmental toxins while serving in the Gulf War. The examiner should diagnose any respiratory disability, to include breathing conditions, shown during the course of this appeal. Acknowledging the Veteran’s in-service exposure to environmental toxins, the examiner should opine whether any respiratory disability is at least as likely as not (50 percent or greater probability) related to the Veteran’s active service, including the conceded toxin exposure during service. The examiner should provide a rationale with references to the record for the opinions. 3. Schedule the Veteran for a VA shoulder examination conducted by a physician to assist in determining the current nature and etiology of the claimed right shoulder 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 must opine whether any diagnosed right shoulder disability is at least as likely as not related to an in-service injury, event, or disease. If the right shoulder is diagnosed, the examiner must opine whether it at least as likely as not (50 percent or greater probability) (1) began during active service, (2) manifested within one year after the Veteran’s separation from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should consider the Veteran’s lay statements regarding symptoms during and since service in making the opinion, in addition, the examiner must discuss the October 1981 medical note during service of right shoulder pain. 4. Schedule the Veteran for a VA examination to determine the etiology of any sleep apnea. The examiner must review the claims file and should note that review in the report. All indicated tests and studies must be performed. The examiner must address the Veteran’s lay statements and other lay statements regarding onset, in-service symptoms, and continuity of symptomatology since service. The examiner should provide a complete rationale for all opinions and conclusions and reconcile the opinions with all pertinent evidence of record. (a) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is related to service or any event during service, or manifested to a compensable degree within one year following separation from service. (b) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any sleep apnea is due to, the result, or caused by any service-connected disability. (c) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. 5. Then, schedule the Veteran for a VA examination to assess the current nature and severity of service-connected headaches. The examiner must review the claims file and should note that review in the report. The examiner should provide a complete rationale for all conclusions reached. The examiner must explicitly address the functional impairments caused by the Veteran’s headache disability, both occupationally and socially. The examiner should opine regarding the frequency and severity of headaches and whether there are prostrating attacks and the frequency and severity of any prostrating attacks of headaches. The examiner must discuss the Veteran’s lay claims regarding the severity of his headaches, especially during attacks. 6. Then, schedule the Veteran for a VA examination to assess the current nature and severity of PTSD. The examiner must review the claims file and should note that review in the report. The examiner should opine regarding the levels of social and occupational impairment caused by PTSD and should describe the symptoms, and the frequency and severity of those symptoms, that causes those levels of impairment. The examiner should provide a complete rationale for all conclusions reached. The examiner must explicitly address whether it is at least as likely as not (50 percent or greater probability) that the service-connected PTSD, headaches, and hypertension prevent the Veteran from obtaining or maintaining substantially gainful employment, without consideration of any non-service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.