Citation Nr: 21003325 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-07 881 DATE: January 21, 2021 REMANDED Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a disability manifested by right hip pain is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for heart problems is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes mellitus is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from October 1985 to March 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied the claims of entitlement to service connection for a right wrist disability and a disability manifested by right hip pain. The remaining claims on appeal were remanded for further development. The Veteran appealed the Board’s August 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted an August 2020 Joint Motion for Partial Remand (JMPR) vacating the Board’s August 2019 decision with regard to the claims of entitlement to service connection for a right wrist disability and a disability manifested by right hip pain, and remanding the matters for further consideration and instructions consistent with the JMPR. All of the issues have returned to the Board for further appellate consideration. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a right wrist disability is remanded. See Argument Below 2. Entitlement to service connection for a disability manifested by right hip pain is remanded. The record reflects that the Veteran has not been afforded a VA examination in connection with the claimed right wrist and right hip disabilities, and no opinions as to whether these claimed disabilities are related to the Veteran’s active service are of record. The Board notes that the record reflects a diagnosis of right wrist osteoarthritis. See October 2017 VA treatment record. However, there is no opinion as to whether this diagnosed condition was related to the Veteran’s period of active service. The Veteran has asserted that this disability is a result of lifting heavy equipment while working in the transportation unit in service. See August 2018 notice of disagreement (NOD). As for the Veteran’s right hip pain, the Veteran has asserted that such disability is related to his service-connected lumbar spine disability and associated radiculopathy of the right lower extremity. See id.; see also November 2018 report of general information. He has also attributed his right hip pain to lifting heavy equipment in the military; thus, asserting that it could possibly be directly related to his active service. See id. In light of the evidence of record, the Veteran may have current disabilities related to the right wrist and right hip that may be associated with service. As the Veteran has not been afforded a VA examination in connection with either of these claims, the Board finds that a remand for a VA examination for each claimed disability is warranted. 3. Entitlement to service connection for sleep apnea is remanded. See Argument Below 4. Entitlement to service connection for heart problems is remanded. See Argument Below 5. Entitlement to service connection for hypertension is remanded. See Argument Below 6. Entitlement to service connection for diabetes mellitus is remanded. The Veteran has contended, in pertinent part, that due to the impairment of the service-connected lumbar spine disability and associated radiculopathy of the bilateral lower extremities, his physical activities were limited, which caused him to develop significant weight gain, which in turn resulted in the development of the sleep apnea, heart problems, hypertension, and diabetes. In the August 2019 remand, the Board directed that the RO provide the Veteran with VA examinations for sleep apnea, heart problems, hypertension, and diabetes mellitus, and to provide opinions as to whether the disabilities were caused or aggravated by the service-connected lumbar spine disability and associated radiculopathy of the bilateral lower extremities. In light of the above-stated contention, the examiner was instructed to also provide opinions addressing whether the Veteran’s obesity was related to his claimed disabilities. The Board notes that the record includes May 2019 and October 2019 private opinions in which the physicians associated the Veteran’s weight gain with his service-connected disabilities; however, as no rationale was provided, the opinions are inadequate. In October 2019, VA examinations for sleep apnea, heart problems, hypertension, and diabetes mellitus were conducted. For each claimed disability, the examiner opined that it is less likely as not that the disability was aggravated beyond its natural progression by the service-connected lumbar spine disability and associated radiculopathy of the bilateral lower extremities. As rationale, the examiner indicated that there are no direct pathophysiologic or medical studies that showed that the claimed disabilities were aggravated by or worsened by the service-connected disabilities. The examiner further stated that there are no records that show treatment of the claimed disabilities in service. In June 2020, the October 2019 VA examiner provided an addendum opinion, addressing the Veteran’s significant weight gain. The examiner opined that it is less likely as not that the Veteran’s service-connected lumbar spine disability and radiculopathy caused the Veteran to become obese. The examiner explained that obesity commonly has multiple contributing factors and causes, as it is commonly idiopathic, or multifactorial in nature, including metabolic syndrome, illicit drug use, hormone dysfunction, genetic diseases, lifestyles, and/or diet. The examiner further stated that there is no direct pathophysiologic link between lumbar spine disability and radiculopathy causing obesity since there is no direct causal relationship between the two conditions. The Board finds the October 2019 and June 2020 VA opinions are inadequate, as the examiner did not address the May 2019 and October 2019 private opinions in which the physicians associated the Veteran’s weight gain with his service-connected disabilities. Thus, the examiner failed to consider and discuss relevant evidence. As such, the opinions are inadequate because they did not consider all relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, new VA medical opinions for the claimed disabilities should be obtained, which include adequate supporting rationales. On remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right wrist condition. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must state an opinion as to the following: (a) Identify any and all disabilities pertaining to the Veteran’s right wrist. (b) For any currently diagnosed right wrist disability, the examiner should provide an opinion as to whether it is at least as likely as not related to the Veteran’s military service. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right hip condition. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed 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 as secondary to his service-connected joint disabilities. The examiner must opine whether it is at least as likely as not that any diagnosed right hip disability is related to an in-service injury, event, or disease, to include as secondary to his service-connected lumbar disability associated with radiculopathy of the right lower extremity. In consideration of all of the Veteran’s statements and reports and all pertinent medical records, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that his right hip condition was either caused or aggravated beyond the natural progression by the Veteran’s service-connected lumbar disability associated with radiculopathy of the right lower extremity. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Return the claims file to the examiner who performed the October 2019 VA examinations for sleep apnea, heart problems, hypertension, and diabetes mellitus. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the October 2019 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that new VA examinations are necessary, they should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must state an opinion as to whether it is at least as likely as not that the claimed sleep apnea, heart problems, hypertension, and diabetes mellitus were caused or aggravated by the service-connected lumbar spine disability and associated radiculopathy of the bilateral lower extremities. The opinion should include consideration of the following: (1) Whether the service-connected lumbar spine disability and radiculopathy caused the Veteran to become obese; (2) If so, whether the obesity was a substantial factor in causing the claimed sleep apnea, heart problems, hypertension, and diabetes mellitus; and (3) Whether the claimed sleep apnea, heart problems, hypertension, and diabetes mellitus would not have occurred but for obesity caused by service-connected lumbar spine disability and radiculopathy. In providing the opinions, the examiner must discuss the May 2019 and October 2019 private opinions in which the physicians associated the Veteran’s weight gain with his service-connected disabilities. In consideration of all of the Veteran’s statements and reports and all pertinent medical records, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that the claimed sleep apnea, heart problems, hypertension, and diabetes mellitus were either caused or aggravated beyond the natural progression by the Veteran’s service-connected lumbar disability associated with radiculopathy of the bilateral lower extremities. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After completing the above development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.