Citation Nr: 20021645 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-00 474 DATE: March 26, 2020 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a low back condition is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for sleep disturbances is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for sleep disturbances is remanded. Entitlement to service connection for peripheral neuropathy (claimed as numbness and tingling) of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy (claimed as numbness and tingling) of the left lower extremity is remanded. FINDINGS OF FACT 1. An unappealed September 2011 rating decision denied entitlement to service connection for fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome, which included low back pain, sleep disturbances, and bilateral lower extremity peripheral neuropathy. 2. The evidence associated with the claims file subsequent to the September 2011 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for low back pain, sleep disturbances, and bilateral lower extremity peripheral neuropathy. 3. A back disability was not present during the Veteran’s active service and is not otherwise etiologically related to such service, and thoracolumbar spine arthritis was not manifest to a compensable degree within a year of the Veteran’s separation from service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep disturbances. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 5. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1990 to January 1994. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the case for further development in October 2018. The case has since been returned to the Board for appellate review. Claims to Reopen A September 2011 rating decision denied entitlement to service connection for fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome, which included the claim of low back pain, sleep disturbances, and bilateral lower extremity peripheral neuropathy, because the Veteran’s claimed disabilities were not related to the Veteran’s exposure to Gulf War environmental hazards. The pertinent evidence that has been received since the September 2011 rating decision includes lay statements from the Veteran that his back pain was aggravated by a personal assault in service, buddy statements that show that the Veteran first complained of numbness in his lower extremities in service and that thy have continued since service, and that his sleep disturbances began in-service like many others that he was deployed with. The Board finds that the new evidence obtained is not cumulative or redundant of the evidence previously of record. It also raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, reopening the claim of entitlement to service connection for a low back disability, sleep disturbances, and bilateral lower extremity peripheral neuropathy. To that extent only, the appeal is allowed. Service Connection – Back Disability The Veteran asserts that he has a low back disability related to his active service. Specifically, he has asserted that his back pain is related to his service in the Persian Gulf. Additionally, he reported that his back disability was aggravated by a personal assault while in service. Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of a back disability while the Veteran was in active service. In October 1993, he was afforded a physical examination shortly before separation. The Veteran was found to be clinically normal at that time. There is no indication from the examination report that he reported symptoms that could be associated with a back disability at that time. Further, in an October 1993 report of medical history, the Veteran denied recurrent back pain. Although he did report several other disabilities, including painful joints, broken bones, and foot trouble. Post-service treatment records show that the Veteran was in a motor vehicle accident in July 2008. At that time, his lumbar spine was found to have no acute fracture or malalignment, and bilateral L5 pars defects with Grade I anterolisthesis of L5 on S1. Shortly thereafter, an MRI of the lumbar spine revealed anterior spondylolisthesis and bilateral pars defects at the L5-S1, and a moderately severe degree of bilateral neural foraminal narrowing with likely intermittent impingement onto the L5 nerves. There was also disc narrowing and desiccation at the L4-5. While seeking treatment for his motor vehicle accident, the Veteran stated that his back pain existed prior to his accident. Additional records reflect that in December 2015, the Veteran reported 10 years of chronic centralized back pain with occasional radiation into the posterior thighs. The Veteran was first afforded a VA general medical examination in April 2011. At that time, the Veteran reported low back pain since 1991. Further, he reported that he was not being treated for his pain. The examiner found that the Veteran did not have any symptoms that met the definitional guidelines for irritable bowel syndrome, chronic fatigue syndrome, or fibromyalgia. No nexus opinion was provided for the Veteran’s low back pain. The Veteran was afforded a VA examination in February 2014. At that time, the examiner diagnosed the Veteran with a lumbosacral strain. The Veteran reported chronic back pain that began in-service. The examiner opined that he could not provide an opinion without resort to mere speculation. The examiner stated that there was insufficient medical evidence upon which to base an opinion. VA obtained an opinion in February 2015. At that time, the examiner found that the Veteran was diagnosed with degenerative disc disease and spondylosis of the lumbar spine on MRI after a work-related motor vehicle accident. Further, that the Veteran’s condition was not an undiagnosed illness but a musculoskeletal condition that occurred years after military discharge and was most likely due to aging and an interceding/intervening motor vehicle accident injury in 2008. The Veteran was afforded another VA examination in November 2015. At that time the Veteran reported that his low back disability was related to exposures he encountered while in the Gulf War. The examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner noted that there was a diagnosis of a back disability, but there was no established chronicity of condition or treatment, and there was no known medical knowledge or study linking any Gulf War exposure to the Veteran’s current back disability. Further, that the Veteran’s back signs and symptoms were noted to be consistent with his acquired spondylolisthesis with bilateral neural foraminal stenosis. The examiner found that the Veteran’s diagnosis had a clear and specific etiology. Thus, there was no nexus between the Veteran’s back disability and any in-service injury, illness, or event. In October 2018, the Board remanded the entitlement to service connection for a back disability to obtain a new opinion finding that the November 2015 opinion did not address the Veteran’s lay statements. In July 2019 VA obtained an addendum opinion. The examiner found that the Veteran’s back disability was less likely as not the result of the Veteran’s service. In so finding, the examiner noted that the Veteran’s STRs were silent for a back disability or injury, and that his separation examination was silent for a back injury. The examiner stated that the Veteran’s back disability was more likely than not from a nonservice-related injury. Later in July 2019, VA obtained an additional addendum opinion. At that time, the examiner explained that the Veteran’s lay statements regarding persistent symptoms were reviewed and considered when forming the opinion, and that the opinion remained unchanged. Further, the Board finds that the VA examinations, when taken together, are the most probative evidence of record. The examiners examined the Veteran and reviewed the Veteran’s medical and service records, and considered his lay assertions. Further they relied on their own expertise, knowledge, and training when drafting the reports. Indeed, the Veteran was provided multiple VA examinations for his back disability, and the examiners have always found that his disability was less likely than not related to service. Further, there are no medical opinions of record to the contrary. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran’s lay assertions that he has had pain since service. However, while the Veteran is competent to report observable symptomatology, he is not competent to link his current diagnosis to his active service. Opinions of that nature require medical expertise and are outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Additionally, as noted above, the Veteran was not diagnosed with a back disability within one year of his separation from active service. Therefore, presumptive service connection is not warranted in this case. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a back disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is warranted before the remaining claims on appeal are decided. 1. Sleep disturbances The Veteran was most recently afforded VA examinations (narcolepsy and sleep apnea) to address his claim for service connection for his sleep disturbances in July 2019. The examiner found that the Veteran had not been diagnosed with narcolepsy, but had a diagnosis of significant obstructive sleep apnea which was more than likely the cause of his sleep disturbances. In a July 2019 VA opinion, the examiner opined that the Veteran’s claimed sleep apnea was less likely as not the result of the Veteran’s service. In that regard, the examiner stated that there must be documented pathology to support the claim. The examiner noted that the STR’s were silent for a sleep disorder, and that the separation medical examination was also silent for sleep apnea. However, the examiner found that the Veteran’s sleep apnea was more likely than not from an “osr” increase in body mass index and his gender. The examiner stated that without any further evidence the Veteran’s claim could not be supported at that time. In that same opinion, the examiner noted that the Veteran was not diagnosed with narcolepsy. Later in July 2019, VA obtained an additional addendum opinion. At that time, the examiner explained that the Veteran’s lay statements regarding persistent symptoms were reviewed and considered when forming the opinion, and that the opinion remained unchanged. The Board finds the July 2019 opinion, even with consideration of the subsequent addendum opinions, is inadequate to decide the claim. In that regard, the examiner has made unclear and inconsistent statements regarding the etiology of the Veteran’s sleep disturbances. Specifically, the examiner indicated both that the Veteran’s sleep disturbances are less likely than not a result of the Veteran’s service; and are more likely than not from an “osr” military service increase in BMI and his gender. Thus, it is unclear if the July 2019 examiner is indicating that the Veteran’s sleep disability is related to an increase in BMI during service or not. Therefore, the development conducted does not comply with the directives of the October 2018 Board remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Veteran should be afforded a new VA examination to determine the nature and etiology of his sleep disturbances. 2. Peripheral neuropathy In the October 2018 remand, the Board directed that an addendum opinion regarding the nature and etiology of the Veteran’s claimed peripheral neuropathy in the lower extremities, to specifically include considering the Veteran’s lay statements regarding the onset and continuity of his symptoms. To date, the directed opinion has not been obtained. Instead the Veteran was provided a July 2019 VA examination wherein the examiner found that the Veteran did not have neuropathy. As a result of the examiner’s findings, no VA addendum opinion was obtained. The Board notes that in February 2014, the Veteran was diagnosed with peripheral neuropathy in the bilateral lower extremities. Therefore, the Board finds that the development conducted does not adequately comply with the May 2018 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present lower extremity peripheral neuropathy. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination, by an examiner who has not previously examined the Veteran or provided an opinion in the appeal, to determine the nature and etiology of any currently present sleep disability, to include sleep apnea. The claims file must be made available to and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether is it at least as likely as not (50 percent or better probability) that any currently present sleep disability, to specifically include sleep apnea, had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present sleep disability, to include sleep apnea, was caused or aggravated by a service-connected disability. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination, by an examiner who has not previously examined the Veteran or provided an opinion in the appeal, to determine the nature and etiology of any currently present lower extremity peripheral neuropathy. The claims file must be made available to and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any lower extremity peripheral neuropathy present during the pendency of the appeal had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present lower extremity peripheral neuropathy was caused or aggravated by a service-connected disability. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Cannaday, 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.