Citation Nr: 20022425 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 14-33 217 DATE: March 31, 2020 ORDER Entitlement to service connection for sleep apnea is dismissed. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for membranous nephropathy is remanded. FINDING OF FACT By rating action dated in April 2019, service connection for sleep apnea associated with posttraumatic stress disorder (PTSD) was established; thus, there is no longer a justiciable case or controversy. CONCLUSION OF LAW The criteria for dismissal of entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1966 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Louis, Missouri. This matter was previously before the Board in May 2018 at which time, in pertinent part, the issues captioned above were denied. The Veteran appealed those denials to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 Order, the Court granted the parties’ Joint Motion for Partial Remand and vacated that portion of the Board’s May 2018 decision. It is now returned to the Board. 1. Entitlement to service connection for sleep apnea. In an April 2019 rating decision, the RO granted service connection for sleep apnea associated with PTSD. As such, the claim of entitlement to service connection is moot as the benefit sought on appeal has been awarded in full, and there remain no allegations of errors of fact or law for appellate consideration. Thus, the claim will be dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. REASONS FOR REMAND 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a low back disability. The Veteran contends that he incurred a left shoulder disability and a low back disability due to injuries from a fall in active service. He asserts that he fell off a ladder in active service and sustained injuries. A December 1969 separation examination report indicates that the Veteran reported having a painful or trick shoulder. He denied having recurrent back pain. Physical examination of the upper extremities and spine were normal. The Veteran has current diagnoses of left shoulder infraspinatus tendinosis and partial thickness tear, a distal supraspinatus tendon tear, bursal effusion, and moderate acromioclavicular osteoarthritis; and lumbar spine degenerative disc disease, and degenerative spondylosis at L3, L4, and L5. The parties of the September 2019 Joint Motion for Partial Remand have agreed that the Veteran should be afforded a VA examination so as to obtain a medical opinion as to whether the asserted disabilities are etiologically related to active service. When medical evidence is inadequate, 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); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 4. Entitlement to service connection for hypertension. The Veteran contends that service connection is warranted for hypertension. He has asserted that the hypertension was either secondary to his service-connected PTSD and also due to exposure to Agent Orange during active service. The Veteran currently has a diagnosis hypertension. The parties of the September 2019 Joint Motion for Partial Remand have agreed that the Veteran should be afforded a VA examination so as to obtain a medical opinion as to whether the asserted hypertension is etiologically related to active service, to include whether it was either caused or aggravated by the service-connected PTSD. See Colvin, 1 Vet. App. at 175; Hatlestad, 3 Vet. App. at 216; see also Barr, 21 Vet. App. at 311. 5. Entitlement to service connection for membranous nephropathy. The Veteran has asserted that his membranous nephropathy is secondary to his diagnosed hypertension. As the issue of service connection for hypertension is deemed inextricably intertwined, the nephropathy disability issue must be held in abeyance pending the completion of the remand directives regarding the hypertension issue. See Harris v. Derwinski, 1 Vet. App. at 183 (1990) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, this issue must be deferred pending the outcome of the hypertension claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed left shoulder disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the reported fall from a ladder during active service and the December 1969 reported painful or trick shoulder. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a left shoulder disability in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include the reported fall from a ladder during active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a low back disability in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed hypertension, to include whether it at least as likely as not secondary to a service-connected disability, including PTSD, and whether it is due to exposure to Agent Orange. In this regard, the examiner is directed to answer the following questions as definitively as possible: (a) Is it at least as likely as not that the Veteran’s diagnosed hypertension was caused (in whole or in part) by a service-connected disability, to specifically include the service-connected PTSD, to include medication taken to treat that disability? (b) Is it at least as likely as not that the Veteran’s diagnosed hypertension is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include the service-connected PTSD, to include medication to treat that disability? If the Veteran’s current hypertension is aggravated by a service-connected disability, to the extent possible, the examiner should also indicate the degree of such aggravation by identifying a baseline level of disability. (c) Is it at least as likely as not that the Veteran’s diagnosed hypertension is related to in-service herbicide agent exposure? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for hypertension in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. If it is opined that the Veteran’s hypertension is caused or aggravated by a service-connected disability, or the result of exposure to herbicides during active service, please opine as to any relationship between the hypertension and the Veteran’s kidney disorder. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, 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.