Citation Nr: 21061446 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 12-03 474 DATE: October 4, 2021 ORDER Entitlement to service connection for a left hip disorder is granted. Entitlement to service connection for a right hip disorder is granted. Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to higher staged ratings for a low back disorder is remanded. FINDINGS OF FACT 1. The Veteran's left hip disorder is proximately due to, a result of, or aggravated by his service-connected feet, ankle, knee, and low back disorders. 2. The Veteran's right hip disorder is proximately due to, a result of, or aggravated by his service-connected feet, ankle, knee, and low back disorders. 3. The Veteran's obstructive sleep apnea is proximately due to, a result of, or aggravated by his service-connected sinusitis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hip disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a right hip disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1977 to January 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Board remanded these matters in May 2018. The agency of original jurisdiction (AOJ) was asked, among other things, to request outstanding records from the McDonald Army Hospital relevant to the Veteran's low back disorder. After reviewing the record, substantial compliance is not established with that remand directive, and further remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (2011) (holding that the Board errs as a matter of law when it fails to ensure substantial compliance with the prior remand directives). The claims of service connection for obstructive sleep apnea, a left hip disorder, and a right hip disorder may be granted herein to the maximum extent allowed by law. No further discussion of the duty to assist is necessary as to those claims. Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Compensation may be established for any incremental increase in disability or any additional impairment of earning capacity in nonservice-connected disabilities (aggravation) resulting from service-connected disabilities, above the degree of disability existing before the increase regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 1. Entitlement to service connection for a left hip disorder 2. Entitlement to service connection for a right hip disorder The record confirms reports of recurrent bilateral hip pain with degenerative joint disease. See CAPRI, October 2019 (Primary Care Note p.9; Nursing Note p.23). Service connection has been established for low back disability, disabilities of the right and left knees, chronic left ankle strain, and a disability of the left foot. The outstanding question is whether the Veteran's bilateral hip disorder is a result of his service connected disabilities. The Veteran submitted a medical opinion from Dr. F.P. dated August 2020. Dr. F.P. reviewed the claims file and opined that it is more likely than not that the Veteran's chronic bilateral hip pain with degenerative joint disease is secondary to his service-connected lower back, bilateral knees, and foot pain. She explained that the chronic foot, knee, ankle, and low back disorders caused gait instability leading to overcompensation on the rest of the joints. She reasoned that when an injury exists, surrounding muscles and joints become overworked as they begin to do work that they were not designed to do, resulting in pain, loss of flexibility, and poor mechanics. She cited a medical article to support her opinion. The VA medical opinions of record are no more or less probative the August 2020 private opinion. Considering the above, the Board finds that the evidence is at least in equipoise as to the claims of service connection for a left hip disorder and a right hip disorder. With resolution of reasonable doubt in the Veteran's favor, grants of service connection are warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. Entitlement to service connection for obstructive sleep apnea VA treatment records confirm an active diagnosis of obstructive sleep apnea. See CAPRI, October 2019 (Sleep Medicine Note p.37). The Veteran asserts that his sleep apnea is caused or aggravated by service-connected sinusitis with recurrent bronchitis or acquired psychiatric disorder. See Correspondence, August 2020. The Veteran submitted a medical opinion from Dr. F.P. dated August 2020. Dr. F.P. reviewed the claims file and opined that it is more likely than not that the Veteran's obstructive sleep apnea is secondary to his service-connected sinusitis. She noted that chronic sinusitis caused obstruction of the Veteran's upper airway leading to hypersomnolence, loud snoring, and obstructive sleep apnea. She explained that nasal and sinus issues cause sinus outflow narrowing leading to sleep apnea by disrupting how the body takes in oxygen, interfering with blood flow to arteries and to the brain. She cited a medical website article in support of her opinion. The VA medical opinions of record are no more or less probative the August 2020 private opinion. Considering the above, the Board finds that the evidence is at least in equipoise as to the claim of service connection for obstructive sleep apnea. With resolution of reasonable doubt in the Veteran's favor, a grant of service connection is warranted. REASONS FOR REMAND 4. Entitlement to higher staged ratings for a low back disorder is remanded. On prior remand, the Veteran submitted authorization for VA to obtain his medical records from McDonald Army Hospital in February 2019. The AOJ made a request, but it was rejected because the provider was "non-private". Nevertheless, the AOJ failed to pursue any other avenues for obtaining the medical records from McDonald. Applicable law requires that VA obtain records in the custody of a federal department or agency unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C. § 5103A(c)(2). Therefore, the matter must be remanded again for the AOJ to request the relevant records. If the records cannot be located or are unavailable, a formal finding documenting this conclusion must be provided in the claims file. The Board also notes that it has been almost five years since the Veteran's last VA examination for his low back disorder in December 2016. There is evidence suggesting that the severity of his disorder may have increased since that time. See Correspondence, February 2017 ("my back is a lot worse than what the statement of the case describes"). Accordingly, the Board finds that it is necessary to order a VA examination documenting the current severity of his low back disorder. The matter is REMANDED for the following actions: 1. Please secure for the record copies of complete updated clinical records of all VA treatment the Veteran has received for the disorder on appeal. 2. Obtain the Veteran's medical records from McDonald Army Hospital consistent with the authorization received in February 2019. If an updated authorization is necessary, please request one from the Veteran. All development pursuant to this directive must be documented in the claims file. If the records are determined to be unavailable, issue a formal finding of unavailability documenting this fact. 3. Schedule the Veteran for a VA examination discussing the current severity of his low back disorder. The examiner is asked to describe the severity of the disorder in detail and report all signs and symptoms necessary for evaluating it under the relevant criteria. The examination report should document the range of motion and test for pain in active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the testing, he or she should clearly explain why such testing is impossible. The examiner is asked to elicit information on the characteristics, severity, frequency, and duration of the Veteran's flare-ups, if any, and then estimate the extent of any additional functional loss during such periods. If such an estimate cannot be provided, the examiner must indicate that he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large, and not a limitation of personal knowledge. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.