Citation Nr: 20052829 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-50 710 DATE: August 10, 2020 ORDER Entitlement to service connection for obstructive sleep apnea is denied. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for glaucoma is remanded. Entitlement to service connection for a left shoulder disability is remanded. Evaluation in excess of 10 percent disabling for chondromalacia patella of the left knee is remanded. FINDING OF FACT The preponderance of the evidence is against finding obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1985 to March 1993, from January 2003 to January 2005, and from February 2006 to March 2008. These matters come before the Board of Veterans Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in December 2018 and June 2019 when they were remanded to the Agency of Original Jurisdiction (AOJ). In December 2018, the Board also remanded the issue of service connection for diabetes mellitus. In a September 2019 rating decision, the RO granted service connection for diabetes mellitus, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. In January 2020, the Board remanded other issues. To the extent issues were remanded for further development, the issues will be addressed in a future Board decision, if in order, once that development is completed. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for obstructive sleep apnea The Veteran alleges that his sleep apnea is related to service. He contends it is related to his symptoms of insomnia in service. First, the Board finds that there is a current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran was diagnosed with sleep apnea in 2010. See VA examination, received April 2019. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s service treatment records note a diagnosis of insomnia and a prescription for Ambien, a sleep aid, in January 2007. However, the Board finds that the evidence of record does not support a finding that sleep apnea is related to the Veteran’s service; the third requirement necessary to establish service connection. The Board finds that the evidence of record does not support a finding that the Veteran’s sleep apnea is related to active service. The Veteran underwent a VA examination in April 2019. The examiner concluded that the Veteran’s sleep apnea was less likely than not related to service. The examiner explained that the current medical literation does not support a finding of sleep apnea as due to insomnia. The examiners rationale was also based upon the fact that the Veteran was diagnosed with sleep apnea almost two years after separation from service. The Board finds the April 2019 VA examination to be probative, as it was based upon a complete review of the evidence in the claims file, and provides supporting rationale for the conclusion reached. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). After careful review of the entire record, the Board had determined a preponderance of the evidence weighs against the Veteran’s claim. Accordingly, the claim for service connection is denied. REASONS FOR REMAND The Board finds that further development is necessary before a decision on the merits may be made. The Board sincerely regrets the additional delay occasioned by multiple remands. However, the Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) 1. Entitlement to service connection for fibromyalgia is remanded. In a December 2018 remand, the Board directed the AOJ to provide an examination to determine the nature of the Veteran’s fibromyalgia. If the Veteran did not have fibromyalgia, the examiner was asked to determine if the Veteran has a cluster of signs or symptoms of an undiagnosed illness. The examiner was also asked to determine if the Veteran’s symptoms were due to a known disease or injury, and whether the underlying disease or injury was incurred during service. A VA opinion was obtained in July 2019. However, the opinion does not comply with the previous Board remand. The examiner stated that the Veteran did not have a diagnosis of fibromyalgia but did not address the remaining questions. As the December 2018 remand was not complied with, and in accordance with Stegall, remand for full compliance with the Board’s prior remand is warranted. 2. Entitlement to service connection for hypertension is remanded. In a December 2018 remand, the Board directed the AOJ to provide an examination to determine the nature of the Veteran’s hypertension. The examiner was asked to opine as to whether the Veteran’s hypertension was due to his active duty service and/or if it was secondary to his service-connected PTSD. The Veteran underwent a VA examination in April 2019. The examiner provided a negative opinion as to causation for secondary service connection. The examiner did not, however, provide an opinion as to whether the Veteran’s hypertension was aggravated beyond its natural progression by his service-connected PTSD, nor did she provide an opinion as to direct service connection. Hence, remand is warranted. 3. Entitlement to service connection for glaucoma is remanded. In a December 2018 remand, the Board directed the AOJ to provide an examination to determine the nature of the Veteran’s glaucoma. The examiner was asked to opine as to whether the Veteran’s glaucoma was due to his active duty service and if it was secondary to his service-connected disabilities. The Veteran received a VA examination in April 2019. The examiner provided a negative opinion as to direct service connection but did not address causation or aggravation as it pertains to secondary service connection. As the December 2018 remand was not complied with, and in accordance with Stegall, remand for full compliance with the Board’s prior remand is warranted.   4. Entitlement to service connection for a left shoulder disability is remanded. 5. Evaluation in excess of 10 percent disabling for chondromalacia patella of the left knee is remanded. The Veteran’s left shoulder condition was remanded for an examination in December 2018. An examination was provided in April 2019. Additionally, the Veteran reports receiving chiropractic treatment. The Veteran requested aid in obtaining his private treatment records from Dr. T.H. as recently as May 2020. These records have not yet been associated with the claims file. On remand, additional development is necessary to ensure that the Veteran is afforded the opportunity to identify all relevant private treatment providers and the RO must make reasonable efforts to obtain these records and associate them with the claims file. Finally, in the June 2019 remand, the Board directed the AOJ to provide an examination to determine the severity of the Veteran’s left knee condition. The examiner was asked to determine if the Veteran’s loss of range of motion due to flare-ups experienced by the Veteran at the time of his examinations conducted in September 2016 and April 2018, which the examiner did not provide. The Veteran received a VA examination in July 2019. The examiner noted the Veteran experienced pain with additional range of motion but did not provide range of motion measurements. As the June 2019 remand was not complied with, and in accordance with Stegall, remand for full compliance with the Board’s prior remand is warranted The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, including Dr. T.H., with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Schedule the Veteran for a Gulf War examination to address the Veteran’s claimed fibromyalgia. After reviewing the Veteran’s electronic claims file, the examiner should address whether the Veteran has had fibromyalgia at any time during the appeal period. (a.) If the Veteran has a diagnosis of fibromyalgia, is it at least as likely as not (50 percent probability or greater) that the condition is related to his period of active service, including time served in the Gulf War? (b.) If the Veteran does not have fibromyalgia, does the Veteran have a cluster of signs or symptoms such as fibromyalgia, that are signs or symptoms of an undiagnosed illness? If so, the examiner should determine whether the Veteran has objective indications of the symptoms or signs that are identified as due to an undiagnosed illness. (c.) If the Veteran’s symptoms are due to a known disease or injury, the examiner should determine whether the underlying disease or injury was incurred during service. (d.) In this regard, is it at least as likely as not (50 percent probability or greater) that such diagnosed illness is related to active service or any incident of service? A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s hypertension. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that his hypertension was incurred in, aggravated by, or etiologically related to his military service. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that his hypertension was caused or aggravated by his service-connected PTSD. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s glaucoma. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his glaucoma was caused or aggravated by his service-connected disabilities. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Schedule a VA examination by an appropriate medical professional to assess the current severity of the Veteran’s service-connected left knee disability. Following a review of the record, including any relevant chiropractor records of Dr. T.H., the examiner should provide findings for purposes of rating the Veteran’s disability, including with regard to pain on range of motion testing and an estimation of functional loss. (a.) The examiner should specifically test the Veteran’s left knee for pain on both active and passive motion, in weight-bearing and nonweight-bearing. (b.) The examiner should elicit the history of the Veteran’s symptoms and functional impact he experiences during flare-ups of his left knee disability and estimate the amount in degrees of range of motion lost due to flare-ups, if the examination is not conducted during a flare-up. (c.) The examiner should also estimate the amount in degrees of range of motion lost due to flare-ups experienced by the Veteran at the time of the examinations conducted in September 2016 and April 2018, if possible. If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, Associate 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.