Citation Nr: 21004243 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-43 385 DATE: January 26, 2021 REMANDED Entitlement to service connection for a hip disability is remanded. Entitlement to service connection for a knee disability is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1988 to July 1992. In January 2019, the Veteran testified before the undersigned Veterans Law Judge at a video-conference hearing. A transcript of the hearing has been associated with the claims folder. This matter was previously before the Board in May 2019 and was remanded for further development. Specifically, the Board requested VA examinations to determine the etiology of the Veteran’s claimed disabilities. However, the VA examinations that were obtained are inadequate for adjudicating the Veteran’s claims. Therefore, an additional remand is necessary before the Board can properly adjudicate the appeal. 1. Entitlement to service connection for a hip disability. 2. Entitlement to service connection for a knee disability. 3. Entitlement to service connection for bilateral pes planus. Pursuant to the Board’s remand directives, the Veteran received VA examinations in February 2020 in which the Veteran was diagnosed with degenerative arthritis of the bilateral knee and hip, and bilateral pes planus. However, the examiner found that the conditions were less likely than not related to service. The examiner specifically found that service treatment records (STRs) were silent for treatment or a diagnosis for a hip or knee disability. The examiner also found that the Veteran’s bilateral pes planus clearly and unmistakably existed prior to service, but that the condition was not aggravated by service. The Board finds the opinions are inadequate since the examiner did not consider all the evidence of record prior to rendering her opinion. In this regard, the Board notes that in the Veteran’s hearing, he testified that his hip and knee disabilities were caused by running in service. He further contended that his feet were aggravated by the same. Additionally, in the Board’s prior remand it was noted that the Veteran kept a journal while in Iraq which described instances of running. For example, in one statement, the Veteran noted that he was “addicted” to running. Other notations indicated that he would run for exercise; and in another instance, he noted that he ran four miles in pain, but he could not wait to run again the next day. In addition, STRs show that the Veteran reported pain that radiates into his legs and knees. The Board notes that the Veteran is competent to report an in-service event or injury that may have occurred in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, lay statements must be considered by VA examiners in formulating their medical opinions; otherwise, the examinations are inadequate. Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Therefore, the Board finds the opinions are inadequate since the examiner did not consider the Veteran’s lay statements of record. Moreover, the opinion is inadequate on other grounds as the examiner relied on the absence of treatment or a diagnosis in service. The Board notes that this, in and of itself, does not preclude service connection. Thus, the claims are remanded for new examinations and opinions. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for headaches. 6. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder. In his February 2020 VA examinations, the Veteran’s sleep apnea, headaches, and unspecified depressive disorder were also found to be less likely than not related to service based on the absence of treatment or a diagnosis in service. However, as explained above, reliance on this basis alone renders the opinions inadequate. In addition, the examiners failed to consider the lay evidence of record concerning these conditions. Here, the record shows statements from the Veteran’s journal where he complained of headaches and that he was depressed. In his hearing, he testified to having headaches in Iraq and Germany, and he also testified that he was depressed by having to go to Death Valley constantly. Concerning his sleep apnea, private treatment records show a diagnosis for obstructive sleep apnea. In his hearing, the Veteran testified to exhibiting symptoms of sleep apnea while in service as he reported that other soldiers complained of him snoring and sounding as if he was not breathing. The Veteran’s wife also testified that she witnessed the same symptoms and specifically noted that the Veteran made gasping noises while sleeping. Given the above, the Board finds the opinions are inadequate since the examiners did not consider these lay statements prior to rendering their opinions. As the Board has no reason to doubt the competence and credibility of the Veteran’s statements, these statements must be considered. Accordingly, the claims are remanded for new examinations and medical opinions to determine the etiology of the Veteran’s headaches, sleep apnea, and psychiatric disorder. 7. Entitlement to service connection for hypertension. In the Veteran’s February 2020 hypertension examination, the examiner found that the condition was not related to service based on the absence of treatment or a diagnosis in service; however, reliance on this basis renders the opinion inadequate. The Board also finds that additional development is warranted before an opinion can be rendered. STRs are silent as to any complaints, treatment, or diagnosis for hypertension; however, in his hearing, the Veteran testified that he began taking blood pressure medication while in service. The Board notes that the Veteran served in the Army Reserves from 1992 to 1996. Importantly, the Veteran may be service connected for a disorder if it is shown that the disorder had its onset during a period of active duty for training (ACDUTRA) or is related to an injury incurred during a period of inactive duty for training (INACDUTRA). Although military personnel records for this period of service appear to be of record, STRs appear to be outstanding as there are no STRs for this period of service. As a result, remand is warranted to obtain these outstanding records to satisfy VA’s duty to assist. To that end, the Board notes that the Veteran was requested to identify any private treatment providers pursuant to the Board’s prior remand directives. However, the Veteran did not respond. The Veteran testified that he sought private treatment for several of his claimed disabilities, and a notation within his December 2013 PTSD examination shows that he received private treatment until November 2013. Despite VA’s request, the Veteran did not identify any treatment providers from which records could be obtained. In this regard, the Veteran is advised that the duty to assist is not a one-way street, and the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran’s claims are being remanded on other grounds, the Veteran will be given another opportunity to identify relevant private treatment records so that VA can obtain these records on his behalf. Otherwise, the claims will be adjudicated solely on the evidence of record. The matters are REMANDED for the following action: 1. Contact the appropriate entity to verify the Veteran’s periods of ACDUTRA or INACDUTRA during his Army Reserve service from 1992 to 1996. All records and/or responses received should be associated with the claims file. 2. Contact the appropriate source to obtain any outstanding service treatment records from the Army Reserves. All reasonable attempts should be made to obtain such records, and the claims file must be documented accordingly. 3. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims folder. 4. Undertake appropriate development to obtain any private treatment records identified by the Veteran not already of record. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 5. After completion of the above records development, schedule the Veteran for VA examinations with the appropriate clinicians to determine the etiology of the Veteran’s hip, knee, bilateral foot, sleep apnea, hypertension, and headache disabilities. Provide the VA examiners a list of all active duty, ACDUTRA and INADUCTRA periods. Each examiner must review the entire claims file, including past Board decisions and the current Remand. Any indicated studies should be performed. HIP: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a hip disability that was incurred in service, or is otherwise related to his active duty service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA? KNEE: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a knee disability that was incurred in service, or is otherwise related to his active duty service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA? SLEEP APNEA: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has sleep apnea that was incurred in service, or is otherwise related to his active duty service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA? HEADACHES: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a headache disability that was incurred in service, or is otherwise related to his active duty service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA? PES PLANUS: Is there clear and unmistakable evidence that the Veteran’s foot disability was NOT aggravated (permanently worsened) beyond the natural progression as a result of active duty service, or during a period of ACDUTRA or INACDUTRA? HYPERTENSION: a) The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has hypertension that was incurred in service, or is otherwise related to his active duty service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA? In rendering the requested opinions, the examiner is advised that the Veteran is competent to report in-service injuries, his symptoms, and history. Such reports must be specifically acknowledged and considered in formulating any opinions. The lack of documented treatment in service cannot serve as the sole basis for a negative finding. All opinions should be supported by a clear and detailed rationale. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disorder. 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. a) The examiner should first identify all psychiatric disorders found to be present, to include PTSD, depressive disorder, adjustment disorder, and any other psychiatric condition diagnosed during the pendency of the claim. b) The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently identified psychiatric disability had its onset during active service or is otherwise related to active service. c) If PTSD is diagnosed, the examiner should identify the elements supporting the diagnosis, to include the stressor(s) and whether such stressor(s) are adequate to support a diagnosis of PTSD. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. The examiner must reconcile any previous psychiatric diagnoses in the rendered opinion, to specifically include a private clinician’s January 2019 PTSD diagnosis. A complete rationale should be given for all opinions and conclusions expressed. In providing the rationale for this opinion, the examiner should try and reconcile all psychiatric diagnoses of record. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 7. The AOJ should ensure that the examination reports comply with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 8. Then, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.