Citation Nr: 21002178 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-12 221 DATE: January 12, 2021 REMAND The Veteran served on active duty from August 1979 to August 1982 in the United States Marine Corps. The matter of sleep apnea comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matters of a bilateral knee condition and a bilateral leg condition comes before the Board on appeal from a March 2013 rating decision issued by the VARO. In June 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing held via videoconferencing. During the hearing, the issues addressed were entitlement to service connection for sleep apnea, bilateral knee condition, bilateral leg condition, and a back condition. The back condition was granted service connection in a rating decision issued in June 2020 and is, therefore, no longer before the Board. See June 2020 Rating Decision. REASONS FOR REMAND 1. Bilateral Knee Condition The Board has reviewed the October 2019 VA medical opinion, which addressed the Veteran’s bilateral knee disability, and determined that an addendum opinion is required for clarification. See 38 C.F.R. § 4.2 (requiring VA to "return the [examination] report as inadequate for evaluation purposes" if the report "does not contain sufficient detail"). Here, the examiner opined, in part, that the Veteran’s bilateral knee disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. See October 2019 VA Medical Opinion DBQ. In providing this opinion, the examiner did not explain how it was determined that the Veteran’s disability existed prior to service. Essentially, the examiner provided a conclusory opinion, which renders the opinion inadequate for review. Given this inadequacy, remand is warranted for additional information as to how the examiner determined that the Veteran’s disability existed prior to service. 2. Sleep Apnea Regrettably, the Board finds that a remand is warranted for a VA examination as the March 2015 VA examination is inadequate, where additional evidence of record was not considered, such as the Veteran’s buddy statement. See 38 U.S.C. § 5103A (d); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Upon review of the March 2015 VA Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (DBQ), it only addressed whether the Veteran’s sleep apnea was secondary to the Veteran’s allergic rhinitis. Given that the Veteran’s theory of entitlement is not limited to secondary service connection, the examiner should have also addressed whether the Veteran’s sleep apnea was related to service. Thus, remand is warranted for an examination that addresses direct service connection. Additionally, the March 2015 VA examination report did not address all of the relevant evidence, to include a buddy statement, wherein it was attested that the Veteran snored loudly and that he woke up abruptly out of breath. See October 2014 Buddy Statement. The Board also notes that the Veteran’s private physician submitted a nexus opinion. However, the examiner did not provide a rationale for his opinion. Given that no rationale was provided, and it is of limited probative value, it is especially important to have an adequate examination to assess whether the Veteran’s disability was caused by service or a service-connected disability. 3. Bilateral Hip Condition As an initial matter, the Board notes that the Veteran filed a claim for entitlement to service connection for bilateral sore legs. It is well settled that when a Veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran’s reported symptoms include radiating pain from his back through his hips and pain from his hips through his thighs. See June 2020 Hearing Transcript, pg. 10; October 2019 VA Hip and Thigh Conditions DBQ. Further, the record shows that the Veteran has been diagnosed with bilateral degenerative arthritis of the hips. See October 2019 VA Hip and Thigh Conditions DBQ. Accordingly, the Board has recharacterized the Veteran’s claim as entitlement to service connection for bilateral sore legs, to include his hips. In October 2019, a VA medical opinion was obtained in connection with the April 2019 Board remand. Here, the Board finds this opinion to be inadequate. Specifically, the examiner combines the medical opinion for the Veteran’s bilateral leg condition and his bilateral hip condition. The examiner provides comments pertaining to the Veteran’s pain in his right hip and leg and treatment for his left hip. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. A rationale in connection with this opinion stated that during service the Veteran’s condition was acute and there was no evidence of chronicity of care. Therefore, no nexus was established. The Board is unable to decipher which claimed condition the examiner is referring to. See October 2019 VA Medical Opinion DBQ. Next, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury, event, or illness. In the rational, the examiner stated the Veteran’s bilateral hip degeneration was secondary to his back degeneration. However, the examiner did not provide evidence of a pre-existing condition. This requires clarification. See 38 C.F.R. § 4.2. For the above reasons, the Board finds a remand is warranted. The matters are REMANDED for the following action: 1. Secure recent VA treatment records from December 2019. 2. As to all scheduled examinations, the Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. As to the Veteran’s bilateral knees disability, return the examination to the December 2019 examiner and request an addendum opinion as to whether the Veteran’s bilateral knee condition existed prior to service. (a.) The examiner must provide an explanation, with citations to the record, and rationale as to whether the Veteran’s bilateral knee disability existed prior to service. (b.) In the determination, the examiner must utilize the correct standard and state: (i) whether the disability clearly and unmistakably existed prior to service, AND (ii) whether the disability clearly and unmistakably was NOT aggravated by service. 4. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his sleep apnea, to include as secondary to his service-connected allergic rhinitis. Access to the claims file MUST be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The VA examiner must answer the following questions: (a.) Whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran’s sleep apnea manifested in service or is otherwise causally or etiologically related to his military service. (b.) Whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s sleep apnea was caused by his service-connected allergic rhinitis. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea underwent any incremental increase, in disability, regardless of its permanence, due to: (i) The service-connected allergic rhinitis. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The examiner should provide a detailed rationale for all opinions expressed, including by citing to the record. The VA examiner should consider the following evidence: (a.) The August 2014 sleep study; (b.) The October 2014 buddy statement; (c.) The October 2014 private medical opinion and research from Dr. A.T.L from Johns Hopkins Medicine. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. 5. The RO should obtain a VA medical opinion for the Veteran’s bilateral hip condition from a suitable examiner. If the examiner determines a new VA examination should be completed, then one must be completed prior to issuing a new medical opinion and RO disposition of the claims. (a.) The examiner should be provided the claims file. The examiner should state whether s/he has reviewed the file. The examiner should address the following: (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral hip condition was incurred in or a result of service. (i) The examiner should address the Veteran’s service treatment records including, but not limited to: a. September 1979 service treatment record noting pain for one week. b. March 1981 service treatment record noting left upper thigh pain for one week. (c.) The examiner must provide an explanation with citations to the record and rationale as to whether the Veteran’s disability existed prior to service. In the determination, the examiner must utilize the correct standard and state: (i) whether the disability clearly and unmistakably existed prior to service, AND (ii) whether the disability clearly and unmistakably was NOT aggravated by service. (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hip condition was caused by any service-connected condition, including: (i) Service-connected residuals left ankle sprain, (ii) Left lower radiculopathy, (iii) Degenerative arthritis of the thoracolumbar spine. (e.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hip condition underwent any incremental increase, in disability, regardless of its permanence, due to: (i) Service-connected residuals left ankle sprain, (ii) Left lower radiculopathy, (iii) Degenerative arthritis of the thoracolumbar spine. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The examiner should provide a detailed rationale for all opinions expressed, including by citing to the record. • THE EXAMINER MUST PROVIDE AN OPINION FOR BOTH THE RIGHT LEG AND LEFT LEG INDIVIDUALLY. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.