Citation Nr: 20046167 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 16-02 040 DATE: July 9, 2020 REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for gout is remanded. Entitlement to service connection for vertigo with associated dizziness is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hepatitis B is remanded. Entitlement to service connection for residuals of a shrapnel wound is remanded. INTRODUCTION The Veteran served on active duty from February 1966 to February 1968, and is the recipient of the Army Commendation Medal with “V” device, the Bronze Star Medal, and the Purple Heart Medal. When this case was most recently before the Board in November 2018, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran’s remaining claims are decided. As noted above, the Veteran is a recipient of the Purple Heart Medal as a result of injuries he sustained in combat operations in Vietnam. He is also the recipient of the Army Commendation Medal with “V” device and Bronze Star Medal. Pursuant to 38 C.F.R. § 3.304 (d), satisfactory lay evidence that an injury was incurred in combat will be accepted as sufficient proof if the evidence is consistent with the circumstances, conditions or hardships of service. In this case, the Veteran has asserted he presently has residual scars and vertigo as a result of his shrapnel wounds to the face in service. He has also indicated that as a result of his combat service he presently experiences bilateral shoulder and knee pain. Further, the Veteran has indicated he contracted hepatitis B in service, which is verified upon review of his service treatment records. The Veteran has also asserted his gout may be the result of exposure to herbicides in service, and that his sleep apnea was either incurred in service, or alternatively is intrinsically intertwined with his other claims. To date, the Veteran has not been afforded a single VA examination with respect to these claims. The Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. In the course of the November 2018 remand, the Board instructed the RO to thoroughly review the information contained in the Veteran’s file and obtain examinations where necessary. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Following the Board’s November 2018 remand, the RO obtained a record review medical opinion addressing the Veteran’s bilateral knee and shoulder disabilities, as well as his sleep apnea in April 2020. In sum, the examiner performed a review of the Veteran’s claims file, but wholly failed to examine or even consult the Veteran to consider his competent lay reports. For these reasons, the Board finds these opinions to be deficient. As also noted above, the Veteran was treated for hepatitis in service, and to date, the RO has not obtained a VA examination to assess for this disease or residuals thereof. Further, in the course of a recent October 2019 VA heart examination, the examiner noted the Veteran experiences shortness of breath, dizziness, and fatigue on exertion as a result of his service-connected coronary artery disease (CAD). The April 2020 VA examiner determined the Veteran’s current sleep apnea is the result of his deconditioned state, and the Veteran has asserted his disabilities are intrinsically intertwined. To date, the RO has not obtained a medical opinion to address whether the Veteran’s current sleep apnea is consequentially related to his service-connected CAD. In sum, the Board finds substantial compliance with the November 2018 remand instructions has not been achieved. Accordingly, this case is REMANDED for the following actions: 1. The Veteran should be afforded an examination by a VA examiner with sufficient expertise, who has not previously provided a medical opinion in this case, to determine the etiology of his bilateral shoulder, bilateral knee, gout, vertigo, sleep apnea, hepatitis B, and shrapnel wound scars. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) that any left or right shoulder disability, left or right knee disability, gout, positional disorder/vertigo, sleep apnea, hepatitis B, or shrapnel wound scars diagnosed during the pendency of this claim originated during his period of active service or is otherwise etiologically related to his active service. In this respect, the examiner is asked to specifically consider whether any facial scars or vertigo are the result of the Veteran’s exposure to an exploding shell in service. The examiner should also specifically consider the Veteran’s competent lay statements as they related to the Veteran’s bilateral shoulder and knee injuries in combat. In addition, the examiner should specifically consider and discuss whether the Veteran’s gout may be consequentially related to his herbicide exposure in service, as well as the Veteran’s treatment for viral hepatitis in September 1967. The examiner is also asked to state an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) the Veteran’s sleep apnea disorder: a) was caused by his service-connected coronary artery disease, to include deconditioning resulting therefrom; or b) was worsened by his service-connected coronary artery disease, to include deconditioning resulting therefrom. The examiner must provide a complete rationale for any proffered opinion. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements, and assume such statements are credible for purposes of the opinions. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.