Citation Nr: 20034591 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 18-38 594 DATE: May 18, 2020 REMANDED Service connection for a right ankle tendon rupture is remanded. Service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1974 to March 1977, January 2004 to February 2005, and February 2011 to February 2012. The Veteran also served in the Army National Guard and Army Reserve from June 1991 to June 2015. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 1. Service connection for a right ankle tendon rupture is remanded. The Veteran believes that service connection for a right ankle tendon rupture is warranted. See November 2018 Form 9. The Veteran underwent a VA examination in September 2015 for the right ankle. The examination found that any right ankle condition was not related to a specific exposure event in Southwest Asia. The examination also stated that there was still a search for records for the right ankle condition. When VA provides an examination, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The September 2015 VA examination only provided a direct service connection nexus opinion for the Veteran’s Southwest Asia service. The examination did not provide a direct service connection nexus opinion for service generally and did not provide a secondary service connection nexus opinion. The Veteran reported that the right ankle injury occurred years after he served in Southwest Asia during annual training. The Veteran also reported that the right ankle injury was related to the use of the lower extremities. The Veteran is service connected for a bilateral foot disability. See April 2020 Appellate Brief; July 2018 Rating Decision - Codesheet. Additionally, the examination failed to determine whether the Veteran had a current right ankle disability or what that disability was. For these reasons, the Board finds the September 2015 VA examination inadequate and a remand is needed for a new VA examination. 2. Service connection for obstructive sleep apnea (OSA) is remanded. The Veteran believes that service connection for OSA is warranted. See November 2018 Form 9. The Veteran underwent a VA examination in September 2015 for OSA. The examination found that the Veteran was diagnosed with OSA in November 2014, that the Veteran reported problems sleeping while in Kuwait in 2004 and 2005, that the Veteran reported that a fellow soldier told him that he had OSA, that the Veteran went to a private physician and got an OSA diagnosis during active service, and determined that the Veteran’s OSA was not related to service in Southwest Asia because there was no evidence to support a correlation between the development of sleep apnea and Southwest Asia environmental conditions. The Veteran underwent another VA examination in January 2018 for OSA. The examination found that service treatment records showed no complaints, findings, or a diagnosis of OSA; a 2012 sleep study showed a diagnosis of OSA, but the Veteran did not have a definitive diagnosis until 2014 when the Veteran was diagnosed with severe OSA; that the Veteran started to complain about a lack of sleep upon returning from Kuwait in 2005; that trouble sleeping, still feeling tired after sleep, and a lack of sleep were not symptoms specific to sleep apnea; that there was no indication that the Veteran’s OSA started during active service; and that the Veteran’s OSA was not related to service. The Board finds the September 2015 and January 2018 VA examinations inadequate because they did not consider/were unable to consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, among other evidence, the examinations did not consider the Veteran’s physician’s report, which stated, that upon returning from Kuwait, the Veteran complained about a lack of sleep which started while being deployed. The Veteran’s physician told him he might have sleep apnea. The Veteran did not see anyone for his sleep problems while on active duty because he did not know he had OSA. If he knew, he would have been treated by Army medical personnel. Additionally, medical records showed that the Veteran quit smoking in 1977; that the Veteran had a weight problem; and that the Veteran reported a history of two prior sleep studies off base that showed a diagnosis of OSA, which had not been added to the claims file. The Veteran also reported that instead of going to sick call during service, the Veteran decided to go to his primary physician. Finally, medical records from 2012 showed that the Veteran had been told that he snored loudly; that the Veteran gasped for air, choked, or stopped breathing during sleep; that the Veteran felt drowsy or fatigued during the day; and that the Veteran got up during the night. See April 2020 Appellate Brief; December 2018 VA 646; November 2018 Form 9; October 2018 Buddy / Lay Statement; June 2018 STR-Original; January 2017 Medical Treatment Record; December 2015 NOD; June 2015 Medical Treatment Record; April 2015 Medical Treatment Record. Therefore, a remand is needed for a new VA examination. The matter is REMANDED for the following action: 1. Update VA and private treatment records. 2. Schedule an appropriate VA examination for the right ankle condition. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify any and all disabilities associated with the Veteran’s right ankle at any point during the pendency of the appeal (i.e. since April 2015), even if they are currently asymptomatic or have resolved during the pendency of the appeal. If the examiner cannot identify a right ankle disability, the examiner shall determine whether the pain the Veteran has experienced in relation to his right ankle at any point during the pendency of the appeal results/resulted in a functional loss or impairment to the Veteran. (B) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s right ankle pain/disability is related to active duty, ACDUTRA, and/or INACDUTRA, to include, but is not limited to, environmental exposure in Southwest Asia? If so, for which periods? (C) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s right ankle pain/disability is/was caused by any or all of the Veteran’s service-connected disabilities? (D) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s right ankle pain/disability is/was aggravated beyond its natural progression by any or all of the Veteran’s service-connected disabilities? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. The Veteran is service connected for bilateral plantar fasciitis and degenerative arthritis of the spine. See July 2018 Rating Decision – Codesheet. (E) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran’s obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (F) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated the Veteran’s right ankle pain/disability including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (G) Is it at least as likely as not (a 50 percent or greater probability) that any right ankle arthritis manifested to a compensable degree within one year following service? In addition to the other relevant evidence of record, the examiner is asked to consider the following: (1) The Veteran’s report that the right ankle was treated during the summer of 2013 and that the condition is associated with active duty. See April 2020 Appellate Brief. (2) The Veteran’s report that the right ankle was injured during active duty and continues to have problems until now. See December 2018 VA 646. (3) The Veteran’s report that medical records show that the Veteran was on active duty when he was diagnosed with the right ankle disability. See November 2018 Form 9. (4) Medical records from January 2012 showing that the Veteran had right leg pain that started laterally and went into the top of the foot. Eight months prior, the Veteran noticed lower back and right knee pain after a PT test. The impression was lower back pain with radiating right lower extremity pain and right knee pain. See June 2018 STR-Original. (5) Service records showing that the Veteran served in Southwest Asia. See June 2018 DD 215. (6) Medical records showing that the Veteran had a weight problem. See January 2017 Medical Treatment Record. (7) The Veteran’s report that instead of going to sick call during service, the Veteran decided to go to his primary physician instead. See December 2015 NOD. (8) Medical records from 2015 showing that in July 2013, the Veteran had a follow up appointment for an MRI of the right posterior tibial tendon. The MRI showed some problems. The Veteran reported that he injured the ankle during annual training and the right ankle had been in pain since that time. The Veteran reported that he was diagnosed with a right ankle tendon rupture and was treated with a brace. The Veteran also reported that the right ankle rupture was related to the use of the lower extremities. See September 2015 C&P Exam. (9) Medical records from 2006 and 2009 showing a history of low back pain with radiculopathy, an assessment of peripheral neuropathy, and an assessment of weight gain. See June 2015 Medical Treatment Record. (10) Service records showing that the Veteran was on ACDUTRA from June 10, 2013 to June 24, 2013, as well as the Veteran’s other dates of ACDUTRA and INACDUTRA. See April 2015 Military Personnel Record. (11) Medical records from January 2011 with an assessment of a right knee strain. See April 2015 Medical Treatment Record. (12) Medical records from June 2013 showing a diagnosis of a nontraumatic rupture of other tendons of the foot and ankle. The examination showed tenderness to palpation of the posterior tibial tendon with a small effusion, a little tender to palpation of the Achilles. The assessment was right posterior tibial tendinosis with longitudinal split tear, tendinosis of the Achilles and peroneal tendons mildly symptomatic, intraosseous ganglion of the talus asymptomatic. Specifically, on June 27, 2013, there was pain emanating from the right foot and ankle. The Veteran was in the Reserve and just got off 2 weeks of active duty. The first two days, he ran 2 to 3 miles a day to prepare for PT testing. After the second run, the right foot bothered him and the next morning, the Veteran could barely stand without significant pain. The Veteran stopped running and the pain got better but did not go away. Pain originated on the medial aspect of the right foot and extended over the anterior ankle. The pain had been fairly consistent in nature over the past 2 weeks. The pain was aggravated with activity. It was noted that the Veteran’s body mass index was 25.7. The assessment was bilateral stage 2A/B posterior tibial tendon dysfunction right symptomatic, rupture of tendon nontraumatic other tendons of foot and ankle, right posterior tibial tendon. The symptoms were likely coming from the posterior tibial tendon. Id. (13) Any and all other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran’s documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community or the limits of the examiner’s medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. Schedule an appropriate VA examination for the OSA condition. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s OSA is related to active duty, ACDUTRA, and/or INACDUTRA, to include environmental exposure in Southwest Asia? If so, for which periods? (B) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s OSA is/was caused by any or all of the Veteran’s service-connected disabilities? (C) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s OSA is/was aggravated beyond its natural progression by any or all of the Veteran’s service-connected disabilities? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. The Veteran is service connected for bilateral plantar fasciitis and degenerative arthritis of the spine. See July 2018 Rating Decision – Codesheet. (D) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran’s obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated the Veteran’s OSA including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. In addition to the other relevant evidence of record, the examiner is asked to consider the following: (1) The Veteran’s report that the OSA began during service and that the Veteran reported sleep problems during deployment. The Veteran was diagnosed with OSA in December 2012 and on another test in November 2014. See April 2020 Appellate Brief. (2) The Veteran’s report that while on active duty, the Veteran had symptoms of OSA, but was unable to have a sleep study done because he was deployed. It was related to active duty and was diagnosed within one year of his release from active duty. See December 2018 VA 646. (3) The Veteran’s report that medical records show that the Veteran was on active duty when diagnosed with OSA issues. See November 2018 Form 9. (4) Numerous lay statements from others that after returning home from serving in Kuwait, the Veteran complained about not getting much sleep. The Veteran reported that he only got 3 to 4 hours of sleep each night in Kuwait. While at work, a coworker told the Veteran that the symptoms sounded like sleep apnea. The Veteran went to his physician, was tested for OSA, and was diagnosed with it. One lay statement noted that the Veteran continued to have a lack of sleep since returning from Kuwait. See October 2018 Buddy / Lay Statements. (5) A medical record from January 2012 showing that the Veteran was taking Advil or Tylenol PM to help him go to sleep. See June 2018 STR-Original. (6) Service records showing that the Veteran served in Southwest Asia. See June 2018 DD 215. (7) A medical record showing that the November 2014 sleep study found that the Veteran already had severe OSA. See January 2018 C&P Exam. (8) Medical records from the Veteran’s physician stating that when the Veteran returned from Kuwait, the Veteran complained about a lack of asleep. The Veteran reported that it started during deployment. The Veteran’s physician told the Veteran that it might be OSA. The Veteran was referred for a sleep study. The Veteran did not see anyone for OSA while on active duty because he did not know that he had OSA. If he knew, he would have gotten treatment from Army medical personnel. See January 2017 Medical Treatment Record. (9) Medical records from 2016 showing that the Veteran was referred for a sleep study after complaints of daytime sleepiness, trouble falling/staying asleep, and non-restorative sleep. The Veteran first noticed the symptoms while in Kuwait. The assessment was OSA and the Veteran’s body mass index was noted to be 27.33. The Veteran had quit smoking in 1977 and the Veteran was found to be overweight. The Veteran’s sleep problems correlated with being deployed. Id. (10) Medical records from 2016 showing the Veteran’s report that he had a diagnosis of OSA in 2005 from off base. The Veteran reported that the sleep problems started while in Kuwait, but the Veteran did not notice them until he returned. The Veteran reported that he had two prior studies off base that showed a diagnosis of OSA, but those results were not part of the claims file. Id. (11) The Veteran’s report that instead of going to sick call during service, the Veteran decided to go to his primary physician instead. See December 2015 NOD. (12) A medical record showing the Veteran’s report that a fellow soldier told him that he had OSA and that during active duty, the Veteran went to a private physician and got a diagnosis of OSA. The Veteran’s daytime hypersomnolence was a symptom attributable to OSA. See September 2015 C&P Exam. (13) Medical records from 2013 showing that the Veteran had an abnormal sleep study and an assessment of OSA. Medical records from 2014 showed an assessment of weight gain and sleep apnea. See June 2015 Medical Treatment Record. (14) Medical records from August 2012 showing that the Veteran had been told that he snored loudly; that the Veteran gasped for air, choked, or stopped breathing during sleep; that the Veteran got drowsy or fatigued during the day; and that the Veteran got up during the night. Id. (15) Medical records from 2014 showing that the Veteran was diagnosed with OSA in 2012. Id. (16) Medical records from 2012 showing that a sleep study gave the Veteran a diagnosis of OSA/hypopnea. The Veteran was noted to have a body mass index of 27. Id. (17) A service record showing the Veteran’s dates of ACDUTRA and INACDUTRA. See April 2015 Military Personnel Record. (18) Medical records from 2012 showing that the Veteran had previously been seen and was there for a follow-up sleep study. The diagnosis was OSA. See April 2015 Medical Treatment Record. (19) Medical records showing that the Veteran hurt his back just prior to leaving for Kuwait. Id. (20) Any and all other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran’s documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community or the limits of the examiner’s medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan 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.