Citation Nr: A21001503
Decision Date: 01/21/21	Archive Date: 01/21/21

DOCKET NO. 200212-62331
DATE: January 21, 2021

REMANDED

1. Entitlement to service connection for organic residuals of frostbite to the hands is remanded.

2. Entitlement to service connection for organic residuals of frostbite to the feet is remanded.

3. Entitlement to service connection for a bilateral hearing loss disability is remanded.

4. Entitlement to service connection for tinnitus is remanded.

5. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is remanded.

6. Entitlement to service connection for a left hip disability is remanded.

7. Entitlement to service connection for right hip disability is remanded.

8. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, is remanded.

9. Entitlement to service connection for a left ankle disability is remanded.

10. Entitlement to service connection for kidney stones is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1988 to December 1991 with additional National Guard and Reserve duty.

This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by the Agency of Original Jurisdiction (AOJ).

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review under a modernized review system. The Board is honoring the Veteran’s choice to participate in VA’s test program “RAMP,” the Rapid Appeals Modernization Program.

The Veteran submitted a September 2018 RAMP opt-in election form, in which he selected the Higher-Level review lane. In August 2019, the AOJ issued a RAMP rating decision. In February 2020, the Veteran timely appealed the rating decision by filing a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182), requesting direct review of the evidence considered by the AOJ.

Additionally, evidence has been associated with the claims file after the August 2019 rating decision. However, as the Veteran requested direct review of the evidence considered by the AOJ, the Board may not consider this evidence with respect to the Veteran’s claim on appeal. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a Supplemental Claim are included with this decision.

One of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the Agency of Original Jurisdiction (AOJ) for further development instead of immediately deciding them directly. Nevertheless, even under the AMA, the Board still has the duty to remand issues when necessary to correct a pre-decisional duty-to-assist error. 38 C.F.R. § 20.802(a).

VA’s duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, and there is insufficient medical evidence of record to decide the claim. 38 U.S.C. § 5103A(d)(2); 38C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 79. When VA undertakes to obtain an examination, it must ensure that the examination and opinion therein is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007).

Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury.

The Board notes that secondary service connection on the basis of aggravation may be granted only when there is an increase in severity of the nonservice-connected disability beyond a medically established baseline due to the service-connected disability. The regulation specifically states that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id.

1. & 2. Entitlement to service connection for organic residuals of frostbite to the (1) hands and (2) feet.

The Veteran asserts that service connection for organic residuals frostbite involving his hand and feet is warranted due to exposure to cold conditions in service. The Veteran contends that he experiences extreme sensitivity to cold weather in his hands and feet. He reported that he experienced frostbite in both his hands and feet during Ranger School in December 1989 or 1990 during a river crossing. The Veteran has proffered a New York Times article, 4 Army Ranger Candidates Die in Chilly Florida Swamp, in support of his claim. See March 2017 Notice of Disagreement.

The Veteran has also provided a January 2016 Disability Benefits Questionnaire (DBQ) opinion from a private physician, Dr. Craig Bash. Dr. Bash wrote, “[I]t is in my opinion that [the Veteran] has cold injury to his hands and feet and that this is due to his service time cold exposures as his records do not contain another more likely cause for his foot and hand cold injuries.” Dr. Bash stated that the Veteran “now has pain in these regions [hands and feet] with slight exposure to cold and numbness and tingling. It was noted that the Veteran remembered foot and hand pain from the cold in service and provided the statement, “I have a cold weather injury from Ranger School with Frostbite symptoms in my hands and feet.…”

The Board finds that the opinion is not supported by a well-reasoned rationale, as the “service time cold exposures” were not discussed by Dr. Bash. Therefore, the Board finds that a VA examination and medical opinion is necessary to adjudicate the claimed frostbite residuals of the hands and feet. See 38 C.F.R. § 3.159(c)(4) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). As this constitutes a pre-decisional duty to assist error, the claim must be remanded prior to adjudication. 38 C.F.R. § 20.802(a).

3. Entitlement to service connection for a bilateral hearing loss disability 

The Veteran contends that service connection for a bilateral hearing loss disability is warranted because it was incurred in service or otherwise caused by his exposure to hazardous noise during service in the Army. The Veteran reported that throughout his assignment in the 1st Ranger Battalion, he spent considerable time participating in close quarters battle drills with live ammunitions in tire houses, grenade ranges, artillery ranges, etc. He stated that his duties required expertise in calling in fast moving aircraft to drop bombs, AC130 Specter gunships, rifles, machine guns, grenades and claymores. See April 2017 notice of disagreement (NOD) and February 2020 appellant’s brief. During a February 2016 VA examination, the Veteran reported noise exposure to machine guns, grenades, rockets, helicopters, and jet aircraft. He indicated that he was only able to use hearing protection in one ear at a time per his squad leader, and thus was not able to adequately wear hearing protection during military service.

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss disability, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran has proffered a January 2016 Disability Benefits Questionnaire (DBQ) opinion from a private physician, Dr. Craig Bash. It was noted that the Veteran remembered his ears hurting, ringing, and transient hearing loss from the loud noise in service and was instructed by his squad/team leaders to alternate the wearing of ear plugs between his left and right ears so that he could hear and react to the commands given by his leaders during live-fire exercises. Dr. Bash indicated that the Veteran’s hearing was inadequately protected due to his leaders’ actions as well as insufficient equipment, specifically flanged ear plugs that Occupational Safety and Health Administration (OSHA) reported when even properly fitted, did not reduce noise to a non-damaging level in an environment of 100 dB and had not been relied upon by the Veteran’s unit since 2001 and were replaced by attenuating earphones with integrated communications after the Veteran’s departure.

Dr. Bash noted that the Veteran had worsening frequency losses during service and now has significant losses in both ears. He opined considering every possible sound medical etiology/principle, to at least the 50 percent level of probability that the Veteran’s current hearing loss/tinnitus problems are due to his experiences/trauma that he had during military service. A list of 13 reasons were provided along with his opinion, to include frequency shifts during service and reference to Flint Cummings Otolaryngology: Head & Neck Surgery, 5th Ed.

The Veteran was afforded a VA audiological examination in February 2016. The results showed at least one of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz at 40 decibels or greater in only the left ear. Under 38 C.F.R. § 3.385, the Veteran only needs to meet one of the criteria for his impaired hearing in each ear to be considered a disability for VA purposes. The Veteran has shown one of the criteria in the February 2016 VA audiological examination in the left ear but did not meet any of the three criteria for the right ear.

The February 2016 VA examiner provided opinions that the Veteran’s right and left ear hearing loss were not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. She specifically discussed the 2006 Institute of Medicine (IOM) study that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was “unlikely.” Moreover, she stated that the Veteran’s hearing loss was unilateral (left ear only) and not typical of his reported noise exposure. The examiner found that there was not a permanent positive threshold shift greater than the normal measurement variability at any frequency between 500 and 6000 Hz for either ear. She indicated that the separation examination in 1991 suggested normal hearing within normal limits from 500 to 6000 Hz bilaterally, and the National Guard audiological examination (1995) also suggested normal hearing within normal limits, which was within test-retest reliability of separation examination, 4 years earlier. The significant hearing threshold shifts were noted to have only occurred between the 1995 audiological examination and the testing during the February 2016 examination. However, in her opinion, she noted that there was no audiological data from the Veteran’s enlistment was available for review. The Veteran’s service treatment records include his December 1987 Report of Medical Examination for the purposes of enlistment, including the results of audiological testing and the accompanying Report of Medical History. Several subsequent Reports of Medical Examination with audiological results are also of record.

Therefore, given the conflicting opinions and the Veteran’s audiological data at enlistment being unavailable to the February 2016 examiner, the Board finds that an addendum opinion that discusses the nature and etiology of the Veteran’s hearing loss as it relates to service, to include addressing audiological data from service, specifically the December 1987 entrance examination, and the opinion from Dr. Bash is necessary. As this constitutes a pre-decisional duty to assist error, the claim must be remanded prior to adjudication. 38 C.F.R. § 20.802(a).

4. Entitlement to service connection for tinnitus.

The Veteran contends that his current tinnitus was incurred during active duty service due to his exposure to acoustic trauma. As noted above, the Veteran proffered a January 2016 DBQ from a private physician, Dr. Bash, and was provided a VA examination in February 2016.

In a February 2020 appellant’s brief, the Veteran’s representative stated that Dr. Bash indicated that the Veteran’s service treatment records showed a threshold shift. In contrast, as described above, in her opinion provided for the Veteran’s claimed bilateral hearing loss disability, the February 2016 VA examiner found that significant hearing threshold shifts were noted to have only occurred between the 1995 audiological examination and the testing during the February 2016 examination. The Veteran’s representative also noted that the February 2016 VA examiner was unable to provide a medical opinion on the etiology of the Veteran’s tinnitus without resulting to speculation because of the lack of access to his service records.

Thus, given the conflicting opinions and the availability of the service treatment records, specifically the audiological data from service, including the December 1987 entrance examination, the Board finds that an addendum opinion that discusses the nature and etiology of the Veteran’s tinnitus as it relates to service, to include addressing audiological data from service, specifically the December 1987 entrance examination, and the opinion from Dr. Bash is necessary. As this constitutes a pre-decisional duty to assist error, the claim must be remanded prior to adjudication. 38 C.F.R. § 20.802(a).

5. Entitlement to service connection for OSA, to include as secondary to service-connected disabilities.

The Veteran contends that service connection for OSA is warranted, to include as secondary to his service-connected disabilities, primarily gastroesophageal reflux disease (GERD) caused by his thoracic spine and subscapularis muscle strain with lumbar sacral strain. See February 2020 appellant’s brief.

In a February 2020 appellant’s brief, the Veteran’s representative stated that in his February 2019 opinion, Dr. Bash opined that it is more likely than not that there is a causal relationship between the Veteran’s GERD and OSA, based on a peer-reviewed medical literature, a review of the Veteran’s claims file, and an examination. Specifically, that the temporal lapse between his GERD and OSA is consistent with known medical principles and the pathology of the conditions. Further, the Veteran’s representative noted that the Veteran had not undergone a VA examination for his claimed sleep apnea. See id.

In January 2016, Dr. Bash stated that the Veteran had chronic pain from his service-connected disabilities and did not sleep well. He explained that sleep and pain are interrelated and referenced Medscape. He noted the Veteran’s poor sleep habits in service, particularly the training events during Ranger School. Finally, he noted that the Veteran had a sleep study pending and that he would be able to opine on the sleep relationship to pain once the sleep study was completed.

In February 2019, Dr. Bash provided the opinion, “to at least the 90 percent level probability that [the Veteran’s] current GERD caused his sleep apnea.” As part of his rationale, he referenced Impact of Treatment of Gastroesophageal Reflux on Obstructive Sleep Apnea-Hypopnea Syndrome. The Board notes that the conclusion of this study found that treatment of GERD had a significant impact on the reduction of the apnea-hypopnea indux, snoring, and daytime sleepiness, however, did not directly note a causation between GERD and OSA but did suggest a correlation. Therefore, the Board finds that a VA medical opinion is necessary to adjudicate the claim. See 38 C.F.R. § 3.159(c)(4) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). As this constitutes a pre-decisional duty to assist error, the claim must be remanded prior to adjudication. 38 C.F.R. § 20.802(a).

6. & 7. Entitlement to service connection for (6) left hip and (7) right hip disabilities.

The Veteran contends that service connection for his right and left hip disabilities are warranted because they were incurred in or otherwise related to service. Specifically, in a February 2020 appellant’s brief, the Veteran asserts that the bilateral hip disabilities are a result of two documented hard landings and one fall endured in parachute jumps in service. The Veteran’s representative detailed the following in-service events: (1) in August 1988 where the Veteran struck the ground hard and went to sick call for his injuries; (2) in December 1989, the Veteran’s arm became tangled in the parachute risers and landed harder than usual; and (3) in October 1990 the Veteran fell down a flight of stairs and sought treatment for immediate injuries to his right lower extremity.

The Veteran’s representative referenced a January 2016 private medical opinion from Dr. Bash, which she proports that Dr. Bash enumerates all three of these incidents as the most likely causes of the Veteran’s joint trauma that lead to his present bilateral hip disability. In the opinion, Dr. Bash stated that the Veteran “likely seriously sprained his hips when he fell down a flight of stairs during a night CQB Fast-Rope infill operation” in October 1990. He added that the Veteran walked with a limp and wore a brace on his right ankle and wore special supportive shoes due to the laxity of his lateral collateral right ankle ligaments. He also noted that the Veteran had an antalgic gait due to his left knee and spine pathology, which placed abnormal forces on his hips.

A review of the Veteran’s service treatment records confirms the August 1988 and December 1989 in-service events. However, the Veteran complained of subscapular pain and right arm and thoracic back pain, respectfully. Moreover, November 1990 service treatment records include the Veteran’s complaints of right ankle swelling and pain, with a diagnosis of a grade III right ankle sprain following the Veteran felling down a flight of stairs. Dr. Bash’s opinion for the left and right hip disabilities focused on the October 1990 fall down a flight of stairs and does not specifically address the first two events detailed by the Veteran. The DBQ for the hips provided by Dr. Bash noted the history of the Veteran’s hip disabilities as. “pain from 80 [plus] parachute jumps as an Airborne Ranger Infantry, lower back and sciatic nerve impacts [Veteran’s] ability of movement and mobility,” however, does not provide a sufficient opinion with rationale.

In the February 2020 appellant’s brief, the Veteran’s representative stated that the Veteran has not undergone a VA examination for his claimed bilateral hip disabilities. Lastly, the Veteran had also previously claimed his bilateral hip disabilities as secondary to his service-connected lumbar spine and left knee disabilities. See March 2017 NOD. Therefore, the Board finds that a VA examination and medical opinion is necessary to adjudicate the claim. See 38 C.F.R. § 3.159(c)(4) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). As this constitutes a pre-decisional duty to assist error, the claim must be remanded prior to adjudication. 38 C.F.R. § 20.802(a).

8. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities.

The Veteran contends that service connection for his right knee disability is warranted because it was incurred in or otherwise related to service. Specifically, in a February 2020 appellant’s brief, the Veteran asserts that his right knee disability is a result of an April 1990 tactical jump that went awry. In December 2015, the Veteran claimed the right knee disability as secondary to his service-connected left knee disability. See also March 2017 notice of disagreement.

In the February 2020 appellant’s brief, the Veteran’s representative referenced Dr. Bash’s January 2016 DBQ and opinion. Dr. Bash noted that the Veteran “seriously sprained/injured his knees” in April 1990 during a combat equipment, mass tactical jump and has had continued pain in his back, knees and ankles. Dr. Bash opined, “considering every possible sound medical etiology/principal, to at least the 90 percent level or probability that [the Veteran’s] current L[eft]/R[ight] knee problems are due to his experiences/trauma that [the Veteran] had during military service” and provided a list of 14 reasons.

Service treatment records reflect the Veteran’s March 1991 complaint of left knee pain when the Veteran had a direct blow to the patella in January 1990 when he fell onto a rock in ranger school and a diagnosis of a longstanding fracture of the left patella. May 1990 and November 1991 service treatment record shows that the Veteran presented for warts on the right knee. It does not appear that the “April 1990 tactical jump that went awry” is documented in the service treatment records. The Veteran has submitted buddy statements from fellow members of the 1st Ranger Battalion with the initials, D.G. and T.M., dated October 2016 and January 2016, respectfully, which both stated they were with the Veteran when they jumped in April 1990.

The Veteran was afforded a VA examination for his claimed right knee disability in March 2016. The examiner indicated that the Veteran had a bipartite left patella on imaging studies and that he reported he began having right knee pain “about nine years ago.” The examiner opined that it is less than 50 percent as likely that the Veteran’s right knee condition is due to his service-connected left knee chondromalacia owing to significant proximity issues as noted by the Veteran himself in his history. The VA examiner did not address direct service connection, to include the claimed April 1990 tactical jump. The Veteran contends that the examiner’s opinion was based on an inaccurate factual premise, specifically “proximity issues.” The Board requests that the examiner clarify his opinion with regard to the “significant proximity issues.” Lastly, while the examiner discussed secondary causation, he did not provide an opinion as to aggravation of the Veteran’s claimed right knee disability by the service-connected lumbar spine disability and left knee disabilities. The U.S. Court of Appeals for Veterans Claims (Court) has indicated that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 

Therefore, the Board finds that an addendum medical opinion is necessary to adjudicate the claim. See 38 C.F.R. § 3.159(c)(4) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). As this constitutes a pre-decisional duty to assist error, the claim must be remanded prior to adjudication. 38 C.F.R. § 20.802(a).

9. Entitlement to service connection for left ankle disability.

The Veteran asserts that service connection for a left ankle disability is warranted because it was incurred in or otherwise related to service. Specifically, the Veteran contends that he sprained his ankle twice on active duty, including (1) twisting his ankle jumping off a truck in March 1998 resulting in a diagnosis of a left ankle sprain and (2) seeking treatment for left ankle pain that he had experienced for two weeks in May 1988 and being diagnosed with a left ankle sprain. See February 2020 appellant’s brief.

The Veteran’s representative referenced a January 2016 private medical opinion from Dr. Bash. She noted that Dr. Bash opined that it was at least as likely as not that the Veteran’s left ankle disability was caused by his in-service injuries. Id. As part of the background information, Dr. Bash noted that in October 1990, the Veteran injured his left ankle and right chest muscle when he fell down a flight of stairs. However, in the opinion portion addressing the right and left ankle and right forefoot, Dr. Bash noted that the Veteran “seriously sprained his right ankle” in the October 1990 incident with no reference to the left ankle. The opinion for the left and right ankles and right forefoot/arch problems were combined by Dr. Bash and the two in-service incidents of sprained left ankle mentioned in the February 2020 appellant’s brief were not discussed.

A review of the Veteran’s service treatment records reflects the Veteran’s March 1988 complaint of left ankle pain after jumping off a truck and twisting the left ankle, as well as the May 1988 complaint of left ankle pain for two weeks. Moreover, November 1990 service treatment records include the Veteran’s complaints of right ankle swelling and pain, with a diagnosis of a grade III right ankle sprain following the Veteran felling down a flight of stairs. Thus, the October 1990 in-service incident referenced by Dr. Bash actually involved the right ankle and not the left ankle as originally documented in the background Dr. Bash provided in his January 2016 report, and would be consistent with the Veteran “seriously sprained his right ankle” as noted later in the opinion portion. Dr. Bash’s opinion of the Veteran’s claimed left ankle disability does not address the Veteran’s March 1988 and May 1998 in-service left ankle complaints.

Further, in the February 2020 appellant’s brief, the Veteran’s representative stated that here is no VA medical opinion on record addressing the Veteran’s left ankle disability. The February 2017 VA opinion on the Veteran’s right ankle disability was referenced, however, this opinion was not specifically for the left ankle. The January 2016 private medical opinion, as mentioned above, did not address the Veteran’s in service left ankle events. Lastly, the Veteran had also previously claimed his left ankle disability as secondary to his service-connected lumbar spine, left knee, and right ankle disabilities. See March 2017 NOD. Therefore, the Board finds that a VA examination and medical opinion is necessary to adjudicate the claim. See 38 C.F.R. § 3.159(c)(4) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). As this constitutes a pre-decisional duty to assist error, the claim must be remanded prior to adjudication. 38 C.F.R. § 20.802(a).

10. Entitlement to service connection for kidney stones.

The Veteran asserts that service connection for kidney stones is warranted because they were incurred in or otherwise related to service. The Veteran contends that his service treatment records should show that he complained of severe dehydration and blood in his urine. He reported that several times in service, he became severely dehydrated and required an IV to restore the hydration in his body. The Veteran stated that during Ranger school there was often a lack of water and it was scarce in Jordan. See March 2017 NOD.

In January 2016, a private physician, Dr. Bash, stated that the Veteran “had kidney stones in service and still gets them thus they should be service connected.” He provided the Veteran’s statement, “I have had and will continue to get kidney stones. In 2014 I had to go for surgery to break them up, but I have been passing them for quite a while now.”

The Veteran was afforded a VA examination for urinary tract (including bladder and urethra) conditions in November 2016. The examiner provided a diagnosis of kidney stones with hematuria. However, only a secondary service connection opinion was provided. The examiner stated that according to UpToDate, subscapularis muscle strain with lumbar sacral strain is not a recognized risk factor for the development of kidney stones with hematuria and urinary urgency. He found that it is unlikely that the Veteran’s kidney stones with hematuria and urinary urgency are due to [the service-connected] subscapulares muscle strain with lumbar sacral strain. 

When VA undertakes to obtain an examination, it must ensure that the examination and opinion therein is adequate. Barr, 21 Vet. App. 303. In review of the opinion provided in November 2016, the Board finds the opinions to be inadequate for adjudication purposes. The examiner did not address the Veteran’s contention that his current kidney stones were caused by dehydration in service. While the examiner discussed secondary causation, he did not provide an opinion as to aggravation of the Veteran’s claimed kidney stones with hematuria by the service-connected lumbar spine disability. The Court has indicated that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). El-Amin, 26 Vet. App. at 140.

Moreover, a review of VA medical records indicates that there may be outstanding private medical records that may be potentially relevant to the Veteran’s claim. An April 2017 VA medical record reflects an assessment of kidney stones that were recently passed, and that the Veteran would get outside records to confirm stone pathology. In November 2016 VA medical records the Veteran reported that he was kicked in the bladder in the 1990’s and since then had occasional visible hematuria. The Veteran reported that he had seen an outside urologist five to ten years prior and was told that “it was a blood vessel in my bladder.” The medical records also note recurrent stones that required a lithotripsy in May 2015. The Veteran reported that the “outside urologist couldn’t say why he’s had so many stones.” These private treatment records are not associated with the claims file. Thus, as the Board finds that these records may be potentially relevant to the Veteran’s claim, an effort must be made assist the Veteran to locate and associate any outstanding private medical records with the claims file. As these constitute pre-decisional duty to assist errors, the claim must be remanded prior to adjudication. 38 C.F.R. § 20.802(a).

The matters are REMANDED for the following action:

1. Ask the Veteran to identify the following outstanding private treatment records potentially relevant to the service-connection claim for kidney stones (with hematuria) on appeal:

•	“Outside records” referenced in an April 2017 VA medical record which the Veteran stated he would “get to confirm stone pathology;”

•	A urologist, referenced in a November 2016 VA medical record, seen according to the Veteran “5 to 10 years prior;” and

•	records related to a lithotripsy performed in approximately May 2015.

After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified, and associate them with the claims file. Any negative responses should be in writing and should be associated with the claims file.

2. Schedule the Veteran for a VA examination for his claimed frostbite residuals involving the hands and feet, to determine the nature, extent, and etiology of the claimed disabilities. The examiner is asked to review the record. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed.

To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable:

•	The Veteran served on active duty from February 1988 to December 1991 with a military occupational specialty (MOS) of infantryman.

•	The Veteran asserts that service connection for organic residuals of frostbite to his hands and feet is warranted due to exposure to cold conditions in service. He contends that he experiences extreme sensitivity to cold weather, especially in his hands and feet. The Veteran reported that he experienced frostbite in both his hands and feet during Ranger School in December 1989 or 1990 during a river crossing. See VBMS entry with document type, “Notice of Disagreement,” receipt date 04/11/2017, pages 31-34.

•	The Veteran has proffered a New York Times article, 4 Army Ranger Candidates Die in Chilly Florida Swamp, in support of his claim. See VBMS entry with document type, “Web / HTML Documents,” receipt date 03/23/2017.

•	Of record is the Veteran’s December 1987 Report of Medical Examination for purposes of enlistment (p. 37-38) and the accompanying Report of Medical History (p. 35-36). The Veteran documented that his health was “good” and denied that he had or ever had “loss of finger or toe” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 35-38.

•	A November 1989 service treatment record includes a foot check with negative findings. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, page 73.

•	December 1989 service treatment records include multiple foot checks (negative findings noted, p. 71), and the Veteran’s complaint of runny nose, hacky cough, and cracked fingers. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 55 and 71.

•	April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical Examination show that clinical evaluations of the upper extremities, feet, and “skin, lymphatics” were normal. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 49-50 (April 1989); 53-54 (October 1989); 93-94 (July 1990) & 97-98 (December 1991).

•	In the accompanying April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical History, the Veteran denied that he had or ever had “loss of finger or toe” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 47-48 (April 1989); 51-52 (October 1989); 95-96 (July 1990) & 99-100 (December 1991).

•	The September 1991 Report of Medical Examination shows that clinical evaluations of the upper extremities, feet, and “skin, lymphatics” were normal. See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 5-6.

•	In the accompanying September 1991 Report of Medical History, the Veteran denied that he had or ever had “loss of finger or toe” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 3-4.

•	Following service discharge, a July 1995 Report of Medical Examination during the Veteran’s National Guard service shows that clinical evaluation of the upper extremities, feet, and “skin, lymphatics” were normal. See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 25-26.

•	In the accompanying July 1995 Report of Medical History, the Veteran documented that his health was “good” and denied that he had or ever had “loss of finger or toe” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 28-29.

•	In a January 2016 opinion Dr. Craig Bash wrote, “[I]t is in my opinion that [the Veteran] has cold injury to his hands and feet and that this is due to his service time cold exposures as his records do not contain another more likely cause for his foot and hand cold injuries.” Dr. Bash stated that the Veteran “now has pain in these regions [hands and feet] with slight exposure to cold and numbness and tingling. It was noted that the Veteran remembered foot and hand pain from the cold in service and provided the statement, “I have a cold weather injury from Ranger School with Frostbite symptoms in my hands and feet.…” See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 01/29/2016, with “#2” in the subject field, pages 13-14.

•	In a January 2016 statement, a fellow member of the 1st Ranger Battalion with the initials, T.M., wrote that the Veteran told him about his water crossing during Florida phase of Ranger School. Specifically, that the Veteran told him “about how they had to stop the training and try to warm the students up and how he was hypersensitive to cold from that point on.” See VBMS entry with document type, “Buddy / Lay Statement,” receipt date 04/11/2017, with “#12” in the subject field.

•	In an October 2016 statement, a fellow member of the 1st Ranger Battalion with the initials, D.G., wrote that the Veteran told him about “the water crossing that gave him frost bite.” He stated that the Veteran “was always very susceptible cold and needed to stay warm” and “was always wearing thick socks and gloves on his hands and feet.” See VBMS entry with document type, “Buddy / Lay Statement,” receipt date 04/11/2017, with “#11” in the subject field.

•	The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence.

While the Board has provided some of the relevant facts above, the examiner is to review the entire record, and then answer the following questions:

a)	Please list the Veteran’s current “cold weather” or “frostbite residuals” of the hands and feet disabilities or any functional impairment of the hands and feet due to “cold weather” symptoms.

b)	Is it at least as likely as not (50 percent or greater likelihood) that the Veteran’s cold weather” or “frostbite residuals” of the hands (or any functional impairment) was incurred in or otherwise related to service? Please provide a discussion of the lay statements; the Veteran’s service treatment records, the January 2016 opinion from a private physician, and the article, 4 Army Ranger Candidates Die in Chilly Florida Swamp. (locations in VBMS file laid out above).

c)	Is it at least as likely as not (50 percent or greater likelihood) that the Veteran’s cold weather” or “frostbite residuals” of the feet (or any functional impairment) was incurred in or otherwise related to service? Please provide a discussion of the lay statements; the Veteran’s service treatment records, the January 2016 opinion from a private physician, and the article, 4 Army Ranger Candidates Die in Chilly Florida Swamp. (locations in VBMS file laid out above).

Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3. Return the Veteran’s claims file to the February 2016 VA examiner who performed the examination and provided the opinions for the claimed bilateral hearing loss disability and tinnitus, or to a qualified medical professional if the February 2016 examiner is unavailable, to provide an addendum opinion. If the examiner finds that an in-person audiological examination is necessary, then schedule an examination. If an examination is scheduled, any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. A copy of this remand should be provided to the VA examiner.

To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable:

•	The Veteran served on active duty from February 1988 to December 1991 with a military occupational specialty (MOS) of infantryman.

•	The Veteran contends that service connection for a bilateral hearing loss disability is warranted because it was incurred in service or otherwise caused by his exposure to hazardous noise during service in the Army.

•	The Veteran reported that throughout his assignment in the 1st Ranger Battalion, he spent considerable time participating in close quarters battle drills with live ammunitions in tire houses, grenade ranges, artillery ranges, etc. He stated that his duties required expertise in calling in fast moving aircraft to drop bombs, AC130 Specter gunships, rifles, machine guns, grenades and claymores. See VBMS entry with document type, “NOD,” receipt date 04/11/2017, pages 25-30. See also VBMS entry with document type, “Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief),” receipt date 02/12/2020, pages 4-5.

•	The Veteran reported that the ringing in his ears intensified after a live fire exercise in October 1991. See VBMS entry with document type, “NOD,” receipt date 04/11/2017, page 26.

•	Included in the Veteran’s service treatment records are his December 1987 Report of Medical Examination for purposes of enlistment which reflect a normal clinical evaluation of the Veteran’s “ears-general” and audiological data at the time. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 37-38.

•	In the accompanying December 1987 Report of Medical History, the Veteran documented that his health was “good” and answered “no” when asked if he “w[ore] a hearing aid,” and if he had or ever had “ear, nose, or throat trouble” and “hearing loss,” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 35-36.

•	An April 1989 Report of Medical Examination with audiological data is of record (p. 50). See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 49-50.

•	In the accompanying April 1989 Report of Medical History, the Veteran documented that his health was “good” and answered “no” when asked if he “w[ore] a hearing aid,” and if he had or ever had “ear, nose, or throat trouble” and “hearing loss,” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 47-48.

•	An October 1989 Report of Medical Examination with audiological data is of record (p. 54). See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 53-54.

•	In the accompanying October 1989 Report of Medical History, the Veteran documented that his health was “good” and answered “no” when asked if he “w[ore] a hearing aid,” and if he had or ever had “ear, nose, or throat trouble” and “hearing loss,” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 51-52.

•	A July 1990 Report of Medical History with audiological data is of record (p. 94). The reference audiogram (p. 91) has remarks that the Veteran’s “hearing loss profile is H1” and that he is “routinely exposed to hazardous noise.” Personal hearing protection information is noted in the reference audiogram. (p. 91). See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 91-94.

•	In the accompanying July 1990 Report of Medical History, the Veteran documented that his health was “good” and answered “no” when asked if he “w[ore] a hearing aid,” and if he had or ever had “ear, nose, or throat trouble” and “hearing loss,” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 95-96.

•	 The Veteran’s service treatment records include a December 1990 visit for an annual hearing conservation testing with audiometer results. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, page 87.

•	A September 1991 Report of Medical Examination with audiological data is of record (p. 6). See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 5-6.

•	In the accompanying September 1991 Report of Medical History, the Veteran noted that he was “in good health,” and answered “no” when asked if he “w[ore] a hearing aid,” and if he had or ever had “ear, nose, or throat trouble” and “hearing loss,” See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 3-4.

•	A December 1991 Report of Medical Examination for purposes of separation with audiological data is of record (p. 98). See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 97-98.

•	In the accompanying December 1991 Report of Medical History, the Veteran noted that he was “in good health,” and answered “no” when asked if he “w[ore] a hearing aid,” and if he had or ever had “ear, nose, or throat trouble” and “hearing loss,” See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 95-96.

•	Following service discharge in December 1991, a July 1995 Report of Medical Examination during the Veteran’s National Guard service reflects a normal clinical evaluation of “ears – general” and includes results of audiological testing (p. 26 and 27). See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 25-27.

•	In the accompanying July 1995 Report of Medical History, the Veteran reported that his health was “good,” and answered “no” when asked if he “w[ore] a hearing aid,” and if he had or ever had “ear, nose, or throat trouble” and “hearing loss,” See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 28-29.

•	Of record is a January 2016 DBQ examination report for ear conditions from a private physician. See VBMS entry with document type, “Disability Benefits Questionnaire (DBQ) - Veteran Provided,” receipt date 02/02/2016, with “#1” in the subject field.

•	In a January 2016 opinion on the Veteran’s claimed hearing loss and tinnitus, Dr. Craig Bash noted that the Veteran had worsening frequency losses during service and now has significant losses in both ears. He opined considering every possible sound medical etiology/principle, to at least the 50 percent level of probability that the Veteran’s current hearing loss/tinnitus problems are due to his experiences/trauma that he had during military service. A list of 13 reasons were provided along with his opinion, to include frequency shifts during service and reference to Flint Cummings Otolaryngology: Head & Neck Surgery, 5th Ed. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 01/29/2016, with “#2” in the subject field, pages 10-11.

•	During a February 2016 VA examination, the Veteran reported noise exposure to machine guns, grenades, rockets, helicopters, and jet aircraft. He indicated that he was only able to use hearing protection in one ear at a time per his squad leader, and thus was not able to adequately wear hearing protection during military service. See VBMS entry with document type, “C&P Exam,” receipt date 02/05/2016.

•	The February 2016 examiner noted that the Veteran could not provide specific information regarding the onset of his tinnitus but related it to his military service. See VBMS entry with document type, “C&P Exam,” receipt date 02/05/2016, page 6.

•	The February 2016 VA examination report and opinions (detailed above) for the Veteran’s claimed bilateral hearing loss disability and tinnitus are of record. Id.

•	The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence.

Based upon a review of the relevant evidence to include the Veteran’s service treatment records, lay statements, the January 2016 DBQ examination and opinions, the February 2016 VA audiological examination and opinions, and sound medical principles, the VA examiner should provide an opinion as to:

a)	Whether the Veteran’s hearing loss disability is at least as likely as not (50 percent or greater likelihood) incurred in service, caused by, or otherwise related to service. Please provide a discussion of the lay statements from the Veteran; the Veteran’s service treatment records, including the audiological testing indicated in the December 1987 Report of Medical Examination at enlistment; the January 2016 DBQ examination and opinions, including reference to Flint Cummings Otolaryngology: Head & Neck Surgery, 5th Ed. (locations in VBMS file laid out above). Please specifically address whether a hearing threshold shift occurred during service.

b)	Whether the Veteran’s tinnitus is at least as likely as not (50 percent or greater likelihood) incurred in service, caused by, or otherwise related to service? Please provide a discussion of the lay statements from the Veteran; the Veteran’s service treatment records, including the audiological testing indicated in the December 1987 Report of Medical Examination at enlistment; the January 2016 DBQ examination and opinions, including reference to Flint Cummings Otolaryngology: Head & Neck Surgery, 5th Ed. (locations in VBMS file laid out above). Provide an opinion that is separate and distinct, including adequate rationale, from the opinion for hearing loss.

Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

4. Refer the Veteran’s file to an appropriate examiner for a medical opinion regarding the etiology of the Veteran’s claimed obstructive sleep apnea (OSA). The examiner is asked to review the record. If the examiner finds that an in-person examination is necessary, an examination should be scheduled and any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. A copy of this remand should be provided to the VA examiner.

To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable:

•	The Veteran served on active duty from February 1988 to December 1991 with a military occupational specialty (MOS) of infantryman.

•	The Veteran mainly contends that his obstructive sleep apnea (OSA) is secondary to his service-connected gastroesophageal reflux disease (GERD) and/or the medication which he was prescribed for treatment of his service-connected thoracic spine disability. See (1) VBMS entry with document type, “Correspondence,” receipt date 03/23/2017, pages 1-4; (2) VBMS entry with document type, “Correspondence,” receipt date 03/17/2019; and (3) VBMS entry with document type, “Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief),” receipt date 02/12/2020, pages 1-4.

•	The Veteran is service connected for (1) thoracic spine and subscapularis muscle sprain with lumbar sacral strain; (2) GERD with dysphagia; (3) right lower extremity radiculopathy; (4) left lower extremity radiculopathy; (5) left knee chondromalacia patella; (6) right ankle disability; and (7) left elbow olecranon bursitis.

•	Of record is the Veteran’s December 1987 Report of Medical Examination for purposes of enlistment (p. 37-38) and the accompanying Report of Medical History (p. 35-36). The Veteran documented that his health was “good” and answered “no” when asked if he ever “been a sleepwalker” and if he had or ever had “frequent trouble sleeping.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 35-38.

•	April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical Examination show that clinical evaluations of the nose and “mouth and throat” were normal. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 49-50 (April 1989); 53-54 (October 1989); 93-94 (July 1990) & 97-98 (December 1991).

•	In the accompanying April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical History, the Veteran denied that he had ever “been a sleep walker” and denied that he had or ever had “frequent trouble sleeping.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 47-48 (April 1989); 51-52 (October 1989); 95-96 (July 1990) & 99-100 (December 1991).

•	Also of record is the September 1991 Report of Medical Examination, which shows that clinical evaluations of the nose and “mouth and throat” were normal. See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 5-6.

•	In the accompanying September 1991 Report of Medical History, the Veteran denied that he had ever “been a sleepwalker” and denied that he had or ever had “frequent trouble sleeping.” See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 3-4.

•	Following service discharge, a July 1995 Report of Medical Examination during the Veteran’s National Guard service shows that clinical evaluations of the nose and “mouth and throat” were normal. See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 25-26.

•	In the accompanying July 1995 Report of Medical History, the Veteran reported that his health was “good” and answered “no” when asked if he “been a sleepwalker,” and if he had or ever had “frequent trouble sleeping” See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 28-29.

•	In a December 2015statement, the Veteran’s mother reported that the Veteran’s pain levels for his knees, back, and right ankle have increased over the preceding 20 years. She stated that she knew that the Veteran had a very hard time sleeping. See VBMS entry with document type, “Buddy / Lay Statement,” receipt date 04/11/2017, with “#3” in the subject field.

•	In a January 2016 opinion, Dr. Craig Bash wrote that the Veteran had chronic pain from his service-connected disabilities and did not sleep well. He explained that sleep and pain are interrelated and referenced Medscape. He noted the Veteran’s poor sleep habits in service, particularly the training events during Ranger School. Finally, he noted that the Veteran had a sleep study pending and that he would be able to opine on the sleep relationship to pain once the sleep study was completed. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 01/29/2016, with “#2” in the subject field, pages 14-15.

•	An April 2016 sleep study shows a diagnosis of OSA. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 04/26/2016.

•	In a May 2016 statement, the Veteran’s spouse reported that she has seen the Veteran suffer with pain in his back and knees, and right ankle. She stated that the Veteran had difficulty sleeping because of pain and was constantly moving and waking up throughout the night trying to get a few minutes of sleep. She added that because of the pain, the Veteran had developed sleep apnea and had to wear a breathing machine. See VBMS entry with document type, “Buddy / Lay Statement,” receipt date 04/11/2017, with “#4” in the subject field.

•	In February 2019, Dr. Craig Bash provided the opinion, “to at least the 90 percent level probability that [the Veteran’s] current GERD caused his sleep apnea.” As part of his rationale, he referenced Impact of Treatment of Gastroesophageal Reflux on Obstructive Sleep Apnea-Hypopnea Syndrome. The conclusion of this study found that treatment of GERD had a significant impact on the reduction of the apnea-hypopnea indux, snoring, and daytime sleepiness, See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 02/24/2019, pages 6-8.

•	In a February 2019 DBQ for esophageal conditions, the private physician noted that the Veteran’s GERD had an impact of decreased sleep and sleep apnea. See VBMS entry with document type, “Disability Benefits Questionnaire (DBQ) - Veteran Provided,” receipt date 03/15/2019, with “#5” in the subject field, page 4.

•	The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence.

While the Board has provided some of the relevant facts above, the examiner is to review the entire record, examine the Veteran if determined necessary, and then answer the following questions:

a)	Is it at least as likely as not (50 percent or greater likelihood) that the Veteran’s obstructive sleep apnea (OSA) had its onset during active duty from February 1988 to December 1991 or is otherwise related to service?

b)	If the answer to (a) is negative, is the Veteran’s OSA at least as likely as not (50 percent or greater likelihood) caused by his service-connected disabilities, specifically GERD and the lumbar spine disability? The examiner should consider and address (1) the lay statements; (2) January 2016 correspondence on the Veteran’s claimed OSA from a private physician, including the reference to Medscape; and (3) the February 2019 private physician opinion, including Impact of Treatment of Gastroesophageal Reflux on Obstructive Sleep Apnea-Hypopnea Syndrome (locations in VBMS file laid out above).

c)	If the answer to (b) is negative, is the Veteran’s OSA, at least as likely as not (50 percent or greater likelihood) aggravated by service-connected disabilities, to specifically include GERD and the lumbar spine disability? The examiner should consider and address (1) the lay statements; (2) January 2016 correspondence on the Veteran’s claimed OSA from a private physician, including the reference to Medscape; and (3) the February 2019 private physician opinion, including Impact of Treatment of Gastroesophageal Reflux on Obstructive Sleep Apnea-Hypopnea Syndrome (locations in VBMS file laid out above).

d)	If the examiner finds that a service-connected disability or disabilities aggravates the Veteran’s OSA, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for OSA prior to aggravation. If the examiner is unable to establish a baseline for OSA prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

5. Schedule the Veteran for a VA examination for his claimed right and left hip disabilities, to determine the nature, extent, and etiology of the claimed disabilities. A copy of this remand should be provided to the VA examiner. The examiner is asked to review the record. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed.

To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable:

•	The Veteran served on active duty from February 1988 to December 1991 with a military occupational specialty (MOS) of infantryman.

•	The Veteran contends the bilateral hip disabilities are a result of two documented hard landings and one fall endured in parachute jumps in service, including: (1) in August 1988 where the Veteran struck the ground hard and went to sick call for his injuries; (2) in December 1989, the Veteran’s arm became tangled in the parachute risers and landed harder than usual; and (3) in October 1990 the Veteran fell down a flight of stairs and sought treatment for immediate injuries to his right lower extremity. See VBMS entry with document type, “Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief),” receipt date 02/12/2020, pages 5 7.

•	The Veteran also contends that service connection for his bilateral hip disabilities is warranted as secondary to his service-connected lumbar spine and left knee disabilities. See VBMS entry with document type, “Notice of Disagreement,” receipt date 03/23/2017, with “#6” in the subject field, pages 15-18.

•	The Veteran is service connected for (1) thoracic spine and subscapularis muscle sprain with lumbar sacral strain; (2) GERD with dysphagia; (3) right lower extremity radiculopathy; (4) left lower extremity radiculopathy; (5) left knee chondromalacia patella; (6) right ankle disability; and (7) left elbow olecranon bursitis.

•	Of record is the Veteran’s December 1987 Report of Medical Examination for purposes of enlistment (p. 37-38) and the accompanying Report of Medical History (p. 35-36). The Veteran documented that his health was “good” and denied that he had or ever had “broken bones;” “arthritis, rheumatism, or bursitis;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” “foot trouble;” “painful or ‘trick’ shoulder or elbow;” and “recurrent back pain.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 35-38.

•	An August 1988 service treatment record reflects a hard parachute landing and the Veteran’s complaint of subscapular pain and tender T3 and T4. A radiological report of the thoracic spine showed normal alignment and disc spacing and no significant osseous pathology demonstrated. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, page 59.

•	A December 1989 service treatment record shows that the Veteran became tangled in parachute risers with the right arm hung up. It was noted that he hit the ground a faster speed than usual and felt pain in the thoracic back. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, page 33.

•	November 1990 service treatment records reflect a diagnosis of grade III right ankle sprain, following an injury when the Veteran fell down a flight of stairs. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 83-89.

•	April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical Examination show that clinical evaluations of the spine and other musculoskeletal system and lower extremities were normal. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 49-50 (April 1989); 53-54 (October 1989); 93-94 (July 1990) & 97-98 (December 1991).

•	In the accompanying April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical History, the Veteran denied that he had or ever had “broken bones;” “arthritis, rheumatism, or bursitis;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” “foot trouble;” “painful or ‘trick’ shoulder or elbow;” and “recurrent back pain.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 47-48 (April 1989); 51-52 (October 1989); 95-96 (July 1990) & 99-100 (December 1991).

•	Also of record is the September 1991 Report of Medical Examination that shows clinical evaluations of the spine and other musculoskeletal system and lower extremities were normal. See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 5-6.

•	In the accompanying September 1991 Report of Medical History, the Veteran answered “yes” when asked if he had or ever had “arthritis, rheumatism, or bursitis;” and “no” when asked if he had or ever had “broken bones;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” “foot trouble;” “painful or ‘trick’ shoulder or elbow;” and “recurrent back pain.” The Veteran responded “yes” to being advised to have an operation, which he wrote involved his left knee. He also responded “yes” to having an illness or injury that involved his right ankle in November 1990, which he described as a third-degree ankle sprain. See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 3-4.

•	Following service discharge, a July 1995 Report of Medical Examination during the Veteran’s National Guard service shows that clinical evaluations of the spine and other musculoskeletal system and lower extremities were normal. See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 25-26.

•	In the accompanying July 1995 Report of Medical History, the Veteran documented that his health was “good” and denied that he had or ever had “broken bones;” “arthritis, rheumatism, or bursitis;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 28-29.

•	Of record is a January 2016 DBQ examination report for hip and thigh conditions from a private physician. See VBMS entry with document type, “Disability Benefits Questionnaire (DBQ) - Veteran Provided,” receipt date 02/02/2016, with “#9” in the subject field.

•	In a January 2016 opinion, Dr. Craig Bash wrote that the Veteran “likely seriously sprained his hips when he fell down a flight of stairs during a night CQB Fast-Rope infill operation” in October 1990. He added that the Veteran walked with a limp and wore a brace on his right ankle and wore special supportive shoes due to the laxity of his lateral collateral right ankle ligaments. He also noted that the Veteran had an antalgic gait due to his left knee and spine pathology, which placed abnormal forces on his hips. on the Veteran’s claimed right and left hip disabilities from a private physician, detailed above. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 01/29/2016, with “#2” in the subject field, pages 9-10.

•	The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence.

While the Board has provided some of the relevant facts above, the examiner is to review the entire record, and then answer the following questions:

a)	Is it at least as likely as not (50 percent or greater likelihood) that the Veteran’s right hip and/or left hip disabilities were incurred in or otherwise related to service? The examiner should consider and address (1) the in-service events of August 1988, December 1989, and October (November) 1990; and (2) January 2016 private DBQ and opinion (locations in VBMS file laid out above).

b)	If the answer to (a) is negative, is the Veteran’s right hip and/or left hip disabilities at least as likely as not (50 percent or greater likelihood) caused by his service-connected disabilities, specifically include lumbar spine and left knee? The examiner should consider and address the January 2016 private DBQ and opinion (locations in VBMS file laid out above).

c)	If the answer to (b) is negative, is the Veteran’s right hip and/or left hip disabilities, at least as likely as not (50 percent or greater likelihood) aggravated by service-connected disabilities, to specifically include lumbar spine and left knee? The examiner should consider and address the January 2016 private DBQ and opinion (locations in VBMS file laid out above).

d)	If the examiner finds that a service-connected disability aggravates the Veteran’s right hip and/or left hip disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the right or left hip disability prior to aggravation. If the examiner is unable to establish a baseline for the right or left hip disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

6. Return the Veteran’s claims file to the March 2016 VA examiner who performed the examination and provided the opinion for the claimed right knee disability, or to a qualified medical professional if the March 2016 examiner is unavailable, to provide an addendum opinion. If the examiner finds that an in-person examination is necessary, then schedule an examination. If an examination is scheduled, any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. A copy of this remand should be provided to the VA examiner.

To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable:

•	The Veteran served on active duty from February 1988 to December 1991 with a military occupational specialty (MOS) of infantryman.

•	The Veteran contends that his right knee disability is a result of an “April 1990 tactical jump that went awry.” See VBMS entry with document type, “Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief),” receipt date 02/12/2020, pages 7 8.

•	The Veteran also contends that service connection for his right knee disability is warranted as secondary to his service-connected lumbar spine, and/or left knee disabilities. See VBMS entry with document type, “Notice of Disagreement,” receipt date 03/23/2017, with “#6” in the subject field, pages 11-14. See also VBMS entry with document type, “VA 21-526EZ, Fully Developed Claim (Compensation),” receipt date 03/23/2017.

•	The Veteran is service connected for (1) thoracic spine and subscapularis muscle sprain with lumbar sacral strain; (2) GERD with dysphagia; (3) right lower extremity radiculopathy; (4) left lower extremity radiculopathy; (5) left knee chondromalacia patella; (6) right ankle disability; and (7) left elbow olecranon bursitis. 

•	Of record is the Veteran’s December 1987 Report of Medical Examination for purposes of enlistment (p. 37-38) and the accompanying Report of Medical History (p. 35-36). The Veteran documented that his health was “good” and denied that he had or ever had “broken bones;” “arthritis, rheumatism, or bursitis;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 35-38.

•	A March 1991 service treatment record documents the Veteran’s complaint of left knee pain when the Veteran had a direct blow to the patella in January 1990 when he fell onto a rock in ranger school and a diagnosis of a longstanding fracture of the left patella. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, page 82. See also pages 16, 63, 65, 75, and 79.

•	May 1990 and November 1991 service treatment records show that the Veteran presented for warts on the right knee. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 26 and 102.

•	April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical Examination show that clinical evaluation of the lower extremities was normal. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 49-50 (April 1989); 53-54 (October 1989); 93-94 (July 1990) & 97-98 (December 1991).

•	In the accompanying April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical History, the Veteran denied that he had or ever had “broken bones;” “arthritis, rheumatism, or bursitis;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 47-48 (April 1989); 51-52 (October 1989); 95-96 (July 1990) & 99-100 (December 1991).

•	In the December 1991 Report of Medical History, the Veteran specifically noted under question 18, which asked if he had been advised to have any operations, “L[eft] knee injured in 1991 on a parachute jump advised to have surgery.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, page 100.

•	Also of record is the September 1991 Report of Medical Examination, which shows that clinical evaluation of the lower extremities was normal. See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 5-6.

•	In the accompanying September 1991 Report of Medical History, the Veteran answered “yes” when asked if he had or ever had “arthritis, rheumatism, or bursitis;” and “no” when asked if he had or ever had “broken bones;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” and “foot trouble.” The Veteran responded “yes” to being advised to have an operation, which he wrote involved his left knee. He also responded “yes” to having an illness or injury that involved his right ankle in November 1990, which he described as a third-degree ankle sprain. See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 3-4.

•	Following service discharge, a July 1995 Report of Medical Examination during the Veteran’s National Guard service shows that clinical evaluation of the lower extremities was normal. See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 25-26.

•	In the accompanying July 1995 Report of Medical History, the Veteran documented that his health was “good” and denied that he had or ever had “broken bones;” “arthritis, rheumatism, or bursitis;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 28-29.

•	Of record is a November 2012 statement from the Veteran regarding his left knee symptomology. See VBMS entry with document type, “VA 21-4138 Statement in Support of Claim,” receipt date 12/04/2012, with “left knee” in the subject field.

•	Of record is a VA examination for purposes of an increased rating claim of the service-connected left knee that also includes range of motion measurements and other testing of the right knee. See VBMS entry with document type, “VA Examination,” receipt date 09/10/2013.

•	Of record is a January 2016 DBQ examination report for knee and lower legs conditions from a private physician. It was noted under history that the “left knee was injured in parachute jump in 1991, pain in both knees due to 80+ jumps as in Airborne Ranger and machine gunner.” (p. 2). See VBMS entry with document type, “Disability Benefits Questionnaire (DBQ) - Veteran Provided,” receipt date 02/02/2016, with “#10” in the subject field.

•	In a January 2016 opinion on the Veteran’s claimed right knee disability, Dr. Craig Bash wrote that the Veteran “seriously sprained/injured his knees” in April 1990 during a combat equipment, mass tactical jump and has had continued pain in his back, knees and ankles. Dr. Bash opined, “considering every possible sound medical etiology/principal, to at least the 90 percent level or probability that [the Veteran’s] current L[eft]/R[ight] knee problems are due to his experiences/trauma that [the Veteran] had during military service” and provided a list of 14 reasons. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 01/29/2016, with “#2” in the subject field, pages 7-8.

•	Of record is the March 2016 VA examination and opinion for the claimed right knee disability. The examiner indicated that the Veteran had a bipartite left patella on imaging studies and that he reported he began having right knee pain “about nine years ago.” The examiner opined that it is less than 50 percent as likely that the Veteran’s right knee condition is due to his service-connected left knee chondromalacia owing to significant proximity issues as noted by the Veteran himself in his history.”. See VBMS entry with document type, “C&P Exam,” receipt date 04/09/2016.

•	In a December 2015 statement, the Veteran’s mother stated that she received a call from him when he hurt his knees jumping from an airplane. See VBMS entry with document type, “Buddy / Lay Statement,” receipt date 04/11/2017, with “#3” in the subject field.

•	In a January 2016 statement, a fellow member of the 1st Ranger Battalion with the initials, T.M., stated that he was with the Veteran when they jumped in April 1990. He stated that he “witnessed [the Veteran] hurting his knees on that jump and help him carry him and hs gear off the airfield….” See VBMS entry with document type, “Buddy / Lay Statement,” receipt date 04/11/2017, with “#12” in the subject field.

•	In an October 2016 statement, a fellow member of the 1st Ranger Battalion with the initials, D.G., stated that he was with the Veteran when they jumped in April 1990. He stated that he was the Veteran’s “roommate for a while” and “remember talking to him about his back and knees and how he needed to get more treatment for it.” See VBMS entry with document type, “Buddy / Lay Statement,” receipt date 04/11/2017, with “#11” in the subject field.

•	The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence.

While the Board has provided some of the relevant facts above, the examiner is to review the entire record, examine the Veteran if determined necessary, and then answer the following questions:

a)	Is it at least as likely as not (50 percent or greater likelihood) that the Veteran’s right knee disability was incurred in or otherwise related to service? The examiner should consider and address lay statements from the Veteran and others; service treatment records; January 2016 private opinion; and March 2016 VA opinion on the right knee (locations in VBMS file laid out above).

b)	If the answer to (a) is negative, is the Veteran’s right knee disability at least as likely as not (50 percent or greater likelihood) caused by his service-connected disabilities, to specifically include lumbar spine and left knee?

c)	If the answer to (b) is negative, is the Veteran’s right knee, at least as likely as not (50 percent or greater likelihood) aggravated by service-connected disabilities, to specifically include lumbar spine and left knee?

d)	If the examiner finds that a service-connected disability aggravates the Veteran’s right knee disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the right knee disability prior to aggravation. If the examiner is unable to establish a baseline for the right knee disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

7. Schedule the Veteran for a VA examination for the claimed left ankle disability, to determine the nature, extent, and etiology of the claimed disability. A copy of this remand should be provided to the VA examiner. The examiner is asked to review the record. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed.

To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable:

•	The Veteran served on active duty from February 1988 to December 1991 with a military occupational specialty (MOS) of infantryman.

•	The Veteran contends that he sprained his ankle twice on active duty, including (1) twisting his ankle jumping off a truck in March 1998 resulting in a diagnosis of a left ankle sprain and (2) seeking treatment for left ankle pain that he had experienced for two weeks in May 1988 and being diagnosed with a left ankle sprain. See VBMS entry with document type, “Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief),” receipt date 02/12/2020, pages 8-9.

•	The Veteran also contends that service connection for his left ankle disability is warranted as secondary to his service-connected lumbar spine, left knee, and right ankle disabilities. See VBMS entry with document type, “Notice of Disagreement,” receipt date 03/23/2017, with “#6” in the subject field, pages 6-10.

•	The Veteran is service connected for (1) thoracic spine and subscapularis muscle sprain with lumbar sacral strain; (2) GERD with dysphagia; (3) right lower extremity radiculopathy; (4) left lower extremity radiculopathy; (5) left knee chondromalacia patella; (6) right ankle disability; and (7) left elbow olecranon bursitis.

•	Of record is the Veteran’s December 1987 Report of Medical Examination for purposes of enlistment (p. 37-38) and the accompanying Report of Medical History (p. 35-36). The Veteran documented that his health was “good” and denied that he had or ever had “broken bones;” “arthritis, rheumatism, or bursitis;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 35-38.

•	A March 1988 service treatment record reflects the Veteran’s complaint of left ankle pain after he jumped off a truck and twisted the left ankle. An assessment of sprained ankle was made. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 39.

•	May 1988 service treatment records reflect the Veteran’s complaint of left ankle pain for 2 weeks, an assessment of left ankle sprain, and x-ray imaging of the left ankle, which was “within normal limits.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 42, 45.

•	November 1990 service treatment records reflect a diagnosis of grade III right ankle sprain, following an injury when the Veteran fell down a flight of stairs. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 83-89.

•	April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical Examination show that clinical evaluation of the lower extremities was normal. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 49-50 (April 1989); 53-54 (October 1989); 93-94 (July 1990) & 97-98 (December 1991).

•	In the accompanying April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical History, the Veteran denied that he had or ever had “broken bones;” “arthritis, rheumatism, or bursitis;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 47-48 (April 1989); 51-52 (October 1989); 95-96 (July 1990) & 99-100 (December 1991).

•	Also of record is the September 1991 Report of Medical Examination that shows clinical evaluation of the lower extremities was normal. See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 5-6. 

•	In the accompanying September 1991 Report of Medical History, the Veteran answered “yes” when asked if he had or ever had “arthritis, rheumatism, or bursitis;” and “no” when asked if he had or ever had “broken bones;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” and “foot trouble.” The Veteran responded for question 18, a left knee operation and under question 20, an injury to his right ankle in November 1990 of a third-degree ankle sprain. See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 3-4.

•	Following service discharge, a July 1995 Report of Medical Examination during the Veteran’s National Guard service shows that clinical evaluation of the lower extremities was normal. See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 25-26.

•	In the accompanying July 1995 Report of Medical History, the Veteran documented that his health was “good” and denied that he had or ever had “broken bones;” “arthritis, rheumatism, or bursitis;” “bone, joint or other deformity,” “lameness;” “trick or locked knee;” and “foot trouble.” See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 28-29.

•	Of record is a January 2016 DBQ examination report for ankle conditions from a private physician. See VBMS entry with document type, “Disability Benefits Questionnaire (DBQ) - Veteran Provided,” receipt date 02/02/2016, with “#7” in the subject field.

•	In a January 2016 opinion, Dr. Craig Bash wrote  that the Veteran “seriously sprained his right ankle” in the October 1990 incident with no reference to the left ankle. He attributed the onset of both ankles to service without addressing an in-service left ankle injury. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 01/29/2016, with “#2” in the subject field, pages 6-7.

•	In a February 2017 VA opinion for the Veteran’s right ankle disability, the examiner noted that according to UpToDate, “Most ankle sprains recover fully with non-operative treatment, but as many as 30 percent of patients develop some chronic ankle instability, which can present as recurrent ankle sprain.” See VBMS entries (2 entries) with document type, “C&P Exam,” receipt date 02/08/2017.

•	The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence.

While the Board has provided some of the relevant facts above, the examiner is to review the entire record, and then answer the following questions:

a)	Is it at least as likely as not (50 percent or greater likelihood) that the Veteran’s left ankle disability was incurred in or otherwise related to service? The examiner should consider and address (1) the two in-service incidents that resulted in a sprained left ankle in March 1988 and May 1988; (2) January 2016 private opinion; and (3) February 2017 VA opinion on the right ankle, specifically the reference to UpToDate (locations in VBMS file laid out above).

b)	If the answer to (a) is negative, is the Veteran’s left ankle disability at least as likely as not (50 percent or greater likelihood) caused by his service-connected disabilities, specifically include lumbar spine, left knee, and right ankle?

c)	If the answer to (b) is negative, is the Veteran’s left ankle, at least as likely as not (50 percent or greater likelihood) aggravated by service-connected disabilities, to specifically include lumbar spine, left knee, and right ankle? 

d)	If the examiner finds that a service-connected disability aggravates the Veteran’s left ankle disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left ankle disability prior to aggravation. If the examiner is unable to establish a baseline for the left ankle disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

8. Return the Veteran’s claims file to the November 2016 VA examiner who performed the examination and provided the opinion for the claimed kidney stones and with bleeding discharge (hematuria) disability, or to a qualified medical professional if the November 2016 examiner is unavailable, to provide an addendum opinion. If the examiner finds that an in-person examination is necessary, then schedule an examination. If an examination is scheduled, any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. A copy of this remand should be provided to the VA examiner.

To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable:

•	The Veteran served on active duty from February 1988 to December 1991 with a military occupational specialty (MOS) of infantryman.

•	The Veteran asserts that his kidney stones and blood discharge is related to service. He reported that his service treatment records should show that he complained of severe dehydration and blood in his urine and that several times in service, he became severely dehydrated and required an IV to restore the hydration in his body. He stated that during Ranger school there was often a lack of water and that it was scarce in Jordan. See VBMS entry with document type, “Notice of Disagreement,” receipt date 03/23/2017, with “#6” in the subject field, pages 2-5.

•	The Veteran is service connected for (1) thoracic spine and subscapularis muscle sprain with lumbar sacral strain; (2) GERD with dysphagia; (3) right lower extremity radiculopathy; (4) left lower extremity radiculopathy; (5) left knee chondromalacia patella; (6) right ankle disability; and (7) left elbow olecranon bursitis.

•	Of record is the Veteran’s December 1987 Report of Medical Examination for purposes of enlistment (p. 37-38) and the accompanying Report of Medical History (p. 35-36). The Veteran documented that his health was “good” and denied that he had or ever had “frequent or painful urination;” “kidney stone or blood in urine;” and “sugar or albumin in urine.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 35-38.

•	Of record is a July 1990 urinalysis. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, page 13.

•	April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical Examination show that clinical evaluation of the genitourinary system (G-U System) was normal. See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 49-50 (April 1989); 53-54 (October 1989); 93-94 (July 1990) & 97-98 (December 1991).

•	In the accompanying April 1989, October 1989, July 1990, and December 1991 (separation) Reports of Medical History, the Veteran denied that he had or ever had “frequent or painful urination;” “kidney stone or blood in urine;” and “sugar or albumin in urine.” See VBMS entry with document type, “STR – Medical,” receipt date 01/29/2001, pages 47-48 (April 1989); 51-52 (October 1989); 95-96 (July 1990) & 99-100 (December 1991).

•	Also of record is the September 1991 Report of Medical Examination, which shows that clinical evaluation of the genitourinary system (G-U System) was normal. See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 5-6.

•	In the accompanying September 1991 Report of Medical History, the Veteran answered “yes” when asked if he had or ever had “kidney stone or blood in urine;” and “no” when asked if he had or ever had “frequent or painful urination” and “sugar or albumin in urine.” The Veteran responded for question 19, which asked if he had been a patient in any type of hospital, “Yes. 1980, Tyler Texas, blood in urine.” See VBMS entry with document type, “STR – Medical,” receipt date 03/03/2009, pages 3-4.

•	Following service discharge, a July 1995 Report of Medical Examination during the Veteran’s National Guard service shows that clinical evaluations of the genitourinary system (G-U System) was normal. See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 25-26.

•	In the accompanying July 1995 Report of Medical History, the Veteran documented that his health was “good” and denied that he had or ever had “frequent or painful urination;” “kidney stone or blood in urine;” and “sugar or albumin in urine.” See VBMS entry with document type, “STR – Medical,” receipt date 05/14/2004, pages 28-29.

•	In January 2016 correspondence, a private physician, stated that the Veteran “had kidney stones in service and still gets them thus they should be service connected,” which opinion was based upon the Veteran’s statement of having a history of kidney stones. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 01/29/2016, with “#2” in the subject field, pages 10-11.

•	A November 2016 VA examination report for urinary tract (including bladder and urethra) conditions is of record. The examiner provided a diagnosis of kidney stones with hematuria. The examiner stated that according to UpToDate, subscapularis muscle strain with lumbar sacral strain is not a recognized risk factor for the development of kidney stones with hematuria and urinary urgency. He found that it is unlikely that the Veteran’s kidney stones with hematuria and urinary urgency are due to [the service-connected] subscapulares muscle strain with lumbar sacral strain. See VBMS entry with document type, “C&P Exam,” receipt date 01/11/2017, with “#8” in the subject field.

•	A November 2016 VA medical record reflects a medical history of hematuria. The Veteran stated that he was kicked in the bladder in the 1990’s and since then has occasional visible hematuria. He reported that he had seen an outside urologist 5-10 years prior and was told “it was a blood vessel in my bladder.” See VBMS entry with document type, “CAPRI,” receipt date 12/05/2016, page 3.

•	The Veteran reported that he had a cystoscopy that revealed he was fine and that he had recurrent stones requiring lithotripsy in May 2015. The Veteran denied a family history of kidney or bladder cancer and is a non-smoker. He indicated that the outside urologist could not say why he has had so many stones. Id.

•	November 2016 VA medical records show right sided renal calculi – up to 2 to 3 mm in the interpolar region. The Veteran was encouraged to increase fluid intake if stones had not passed yet. Id., page 5.

•	In November 2016 VA medical records, the Veteran was provided his stone profile and the physician explained to him that he likely had uric acid stones and needed to decrease his red meat intake. See VBMS entry with document type, “CAPRI,” receipt date 11/19/2018, page 324.

•	April 2017 VA medical records reflect a medical history of kidney stones with the Veteran having his first stone in his early 20’s with hematuria and pain. The only stone surgery was shock wave lithotripsy in May 2016. The Veteran stated that he passed stones a few days prior but had no current symptoms and would get outside records to confirm stone pathology. See VBMS entry with document type, “CAPRI,” receipt date 03/03/2018, page 81. See also VBMS entry with document type, “CAPRI,” receipt date 11/19/2018, page 71.

•	A September 2017 VA medical record reflects EtOH (alcohol) binges that had significantly improved since the last clinic visit and a negative CAGE questionnaire. The Veteran was told by the medical professional that [EtOH binges] could be contributing to kidney stones and was encouraged to cut down on binges. See VBMS entry with document type, “CAPRI,” receipt date 06/27/2019, page 257.

•	In April 2018 VA medical records, the Veteran reported that he passed about 3-4 kidney stones since a previous visit, which were really small but associated with flank pain and hematuria when passed. He denied saving the stones for analysis but noted that he had outpatient records for kidney stone analysis that was done in the past. The total number of stones passed was listed at 10 with the first stone passed at around age 40 (which would have been in approximately 2009). See also VBMS entry with document type, “CAPRI,” receipt date 11/19/2018, page 92.

•	Of record is a May 2018 VA medical record of a renal ultrasound which revealed kidney stones. See VBMS entry with document type, “CAPRI,” receipt date 06/27/2019, pages 115-116.

•	An April 2019 VA medical record reflects frequent renal stones with the Veteran estimating that he passed a stone 1-2 times a month in the preceding year. A UTSW stone profile was noted with elevated uric acid and with elevated serum uric acid. The Veteran was followed in renal stone clinic, awaiting him to bring his stone profile to clinic before initiating K citrate. See VBMS entry with document type, “CAPRI,” receipt date 06/27/2019, page 33.

•	The examiner’s review of the record is NOT restricted to the evidence listed above. Additional evidence sought above may have been associated with the claims file. This list is provided in an effort to assist the examiner in locating potentially relevant evidence.

While the Board has provided some of the relevant facts above, the examiner is to review the entire record, examine the Veteran if determined necessary, and then answer the following questions:

a)	Is it at least as likely as not (50 percent or greater likelihood) that the Veteran’s current kidney stones with hematuria disability was incurred in or otherwise related to service? The examiner should consider and address (1) the lay statements; (2) service treatment records; (3) January 2016 private opinion; (4) November 2016 VA examination report and opinion; and (5) VA records (locations in VBMS file laid out above).

b)	If the answer to (a) is negative, is the Veteran’s kidney stones with hematuria disability at least as likely as not (50 percent or greater likelihood) caused by his service-connected disabilities, specifically include the lumbar spine disability?

c)	If the answer to (b) is negative, is the Veteran’s kidney stones with hematuria disability, at least as likely as not (50 percent or greater likelihood) aggravated by service-connected disabilities, to specifically include the lumbar spine disability?

d)	If the examiner finds that a service-connected disability aggravates the Veteran’s kidney stones with hematuria disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the kidney stones with hematuria disability prior to aggravation. If the examiner is unable to establish a baseline for the left ankle disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Cheng, 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.