Citation Nr: 21004005 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-11 487 DATE: January 25, 2021 REMANDED Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for residuals of a fractured fibula, to include shin splints, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for migraines is remanded. Entitlement to an initial evaluation in excess of 10 percent for chondromalacia, left knee with patellar tendonitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1988 to November 1988, from October 1989 to March 1990, from March 1990 to July 1990, and from November 1990 to March 1991. He also served in the United States Army during October 2001 and from March 2002 to March 2003. The Veteran has additional periods of service in the United States Marine Corps Reserves, Minnesota Army National Guard, and the Maryland Army National Guard, which are to be clarified in Remand section below. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2011 and October 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board remanded this matter for additional evidentiary development. 1. Entitlement to service connection for lumbar spine disability is remanded. 2. Entitlement to service connection for cervical spine disability is remanded. 3. Entitlement to service connection for residuals of a fractured fibula, to include shin splints, is remanded. 4. Entitlement to service connection for sleep apnea is remanded. 5. Entitlement to service connection for diabetes mellitus, type II, is remanded. 6. Entitlement to service connection for migraines is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives herein. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The June 2019 Board remand directed that the RO verify the Veteran’s periods of active duty, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) during his service in the United States Marine Corps Reserves, Minnesota Army National Guard, and the Maryland Army National Guard. Although efforts have been made, there has not been substantial compliance to verify the Veteran’s various periods of service. Thus, a remand is again required. 7. Entitlement to an initial evaluation in excess of 10 percent for chondromalacia, left knee with patellar tendonitis is remanded. In July 2020, the Veteran submitted a statement claiming that his left knee disability had worsened, and was now coming out of its socket. This represents a substantial change in the severity of his left knee disability since his most recent VA examination of the leg and knee performed in October 2019. Under these circumstances, an updated examination of his chondromalacia, left knee with patellar tendonitis is required to determine the current severity of this condition. The matters are REMANDED for the following action: 1. Contact the appropriate service department, including the Defense Finance and Accounting Services (DFAS), to verify the Veteran’s periods of active duty, ACDUTRA and INACDUTRA during his service in the United States Marine Corps Reserves, Minnesota Army National Guard, and the Maryland Army National Guard from June 1988 to August 2012. A summary of the Veteran’s retirement points will not suffice. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the appellant and his representative. 2. Schedule the Veteran for an examination to determine the current severity of his chondromalacia, left knee with patellar tendonitis. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must test any instability or subluxation in the left knee. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to chondromalacia, left knee with patellar tendonitis alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.