Citation Nr: 21061824 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-32 820 DATE: October 5, 2021 ORDER Service connection for a left wrist is denied. Service connection for obstructive sleep apnea (OSA) is granted. REMANDED Entitlement to service connection for a lumbosacral spine strain with degenerative arthritis is remanded. Entitlement to service connection for a right ankle condition to include a right ankle strain is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that left wrist condition diagnosed as left wrist sprain began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's current OSA is proximately due to his service-connected PTSD, asthma, and orthopedic conditions. CONCLUSIONS OF LAW 1. The criteria for service connection for left wrist condition to include left wrist sprain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for obstructive sleep apnea (OSA) as secondary to the Veteran's service-connected disabilities are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1994 to July 1998, and from January 2004 to April 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision from the Los Angeles, California Regional Office (RO). In June 2020, the Veteran appeared before the undersigned Veterans Law Judge at a hearing. A transcript of the hearing has been associated with the electronic file. In a March 2021, the Board remanded these matters for further development. The development having occurred, these matters have returned for readjudication. Service Connection 1. Service connection for a left wrist condition is denied. The Veteran contents that he has a current left wrist condition that was incurred during active service. See Form 9 received 6/12/2017 at page 2. Specifically, the Veteran states that he injured his left wrist playing football in April 1997. See C&P Exam received 6/21/2021 at page 3. The Veteran was provided a VA examination in June 2021. The Veteran was diagnosed with left wrist strain, to include with a functional impact that he cannot move it without pain and cannot lift over 5 pounds without pain. As such, the competent evidence shows a current left wrist disability and the first element of service connection is established. The June 2021 examination report and other competent and credible lay evidence of record show in-service left wrist injuries. As such, the second service connection element is established. Regarding a nexus to service, the June 2021 VA examiner opined that the Veteran's current left wrist strain was less likely than not related to service because although the Veteran sprained his wrist in December 1996, had a contusion in January 1997, and injured his wrist in March 1998, there was no evidence of continuity of complaints, symptoms, or treatment. The June 2021 VA examiner noted that the Veteran's current diagnosis of left wrist strain is an injury occurring to any of the tendon(s) of the wrist when the tendon is either overstretched or torn. The June 2021 VA examiner also explained that a mild wrist sprain starts to feel better within one to two days after treatment and fully heals within 1-2 weeks, a moderate injury within 6-8 weeks. The Veteran last injured his wrist in April 2005, therefore based on the aforementioned his current left wrist sprain is unrelated to the injury that happened 16 years ago. See C&P Exam received 6/21/2021 at page 2. The Board finds that the preponderance of the evidence is against the claim for service connection for a left wrist condition, diagnosed as left wrist sprain, because of the adequate medical opinion on record that it is less likely than not that his current condition is related to service. The Board finds that June 2021 VA examiner's opinion is based on an accurate and thorough review of the Veteran's in-service medical treatment which the VA examiner found was unrelated to his current condition since his in-service injuries would have resolved closer to time, and there being no continuity of his complaints, symptoms, and treatments during the 16 years post service. The 2021 VA examiner's opinion is consistent with other competent medical evidence of record, such as the 2014 VA examination report indicating a lack of a left wrist current condition, which tends to support a finding that the Veteran's current left wrist strain, as noted on the 2021 examination, did not have continuous symptomatology after his last discharge from active duty. The 2014 VA examination report also tends to associate any current pain with the Veteran's post-service work in information construction/technology to include lifting servers (weighing 100 pounds or more) for approximately 12 years. Although the Veteran believes his current left wrist condition is related to his inservice treatment, he is not competent to relate his current left wrist pain/disability to service. The issue at hand involves knowledge, training, and/or education of the body's orthopedic system. As such, the Veteran's statement regarding etiology are not competent and lack weight. The Board gives greater probative weight to the VA examination reports, as described above, since an opinion on the etiology of a left wrist condition would require medical expertise. Additionally, there is no positive medical nexus opinion of record that attributes the Veteran's current left wrist sprain to his service. 38 U.S.C. § 5107(a). Accordingly, the Board finds that the preponderance of the evidence is against a nexus to service. As such, service connection is denied. 2. Service connection for OSA is granted. The Veteran was diagnosed with OSA in October 2014. See Capri received 5/06/2020 at page 16. The Veteran contends that his sleep apnea is due to his service-connected PTSD. See Form 9 received 6/12/2017 at page 2. On remand, the Veteran was provided another VA examination in June 2021. The June 2021 VA examiner opined that the Veteran's OSA would not have occurred but for the obesity and weight gain caused by his service-connected disabilities. See C&P Exam received 6/21/2021 at page 4. As basis, the June 2021 VA examiner opined that the Veteran's reported an upswing in his OSA symptoms as his weight increased in 2004. VA treatment records showed complaints and visits for sleep disturbances from 2006 to 2019. As time went on the symptoms progressed until he was ultimately diagnosed with sleep apnea. In adults, the most common cause of sleep apnea is excessive weight and obesity. Id. The Veteran also submitted a private opinion in March 2020 that found a positive nexus with between his service-connected disabilities and his OSA. See Disabilities and Benefits Questionnaire received 3/27/2020 at page 7. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current OSA is proximately due to his service-connected disabilities, specifically PTSD, asthma, and service-connected orthopedic conditions. 38 C.F.R. § 3.310(a). Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for OSA is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle condition to include a right ankle strain is remanded. The Veteran contends that he has a right ankle condition that was incurred during his active duty. See Form 9 received 6/12/2017 at page 2. The Veteran testified that he had multiple injuries to his right ankle during active service. Specifically, in October 1994 during bootcamp when he was diagnosed with cellulitis; in April 1997 during a football game; and when stationed in Okinawa and twisted his right ankle when it got caught between two rocks. See Hearing transcript received 6/23/2020 at pages 12-14. The Veteran received a VA examination in June 2021. He was diagnosed with right ankle strain and calcaneal spur. See C&P Exam received 6/21/2021at page 3. The June 2021 VA examiner opined that the Veteran's right ankle strain and right calcaneal spur were less likely than not cause by service since isolated and adequately treated ankle sprains occur usually with six months, therefore his current right ankle strain cannot be due to the strain he incurred 16 years ago in the military. Further, the June 2021 VA examiner indicated they performed a systematic literature review and then explained that "[m]usculoskeletal strains are common and are considered to be singular episodes of acute stress placed on musculoskeletal structures that cause musculoskeletal pain. These are typically related to a specific injury event that caused a specific pain episode, but most musculoskeletal strains resolve with no sequela. Each musculoskeletal strain is typically unrelated to the prior musculoskeletal strain." As for the Veteran's diagnosed right calcaneal spur, the June 2021 VA examiner opined that plantar fascia is the common cause of bone spurs, which is a secondary biological response to soft tissue trauma not heeling, in the vast majority of cases you will not get calcaneal spur without a bad case of plantar fascia first. Accordingly, since there was no evidence of plantar fascia in the during the Veteran's service, the June 2021 VA examiner opined that it was less likely than not that his right calcaneal spur was related to service. See C&P Exam received 6/21/2021 at page 2. The June 2021 VA examiner also considered secondary service connection as directed by the March 2021 Board remand. However, the June 2021 VA examiner found that the Veteran's service connected disabilities of asthma, left knee with scars, and status post cyst removal of the chin, opined that the Veteran's conditions cannot cause an ankle strain because ankle conditions occur when the ankle joint is twisted too far out of its normal position with most ankle injuries occur either during sports activities or while walking on an uneven surface that forces the foot and ankle into an unnatural position. See C&P Exam received 6/21/2021 at page 2. Since the June 2021 VA examiner opined that she was not able to determine a baseline severity of the Veteran's right ankle strain because it did not exist during service, and the Board's review shows a diagnosis of a mild ankle strain in April 2004, this matter must be remanded for an addendum opinion since this examiner missed a relevant fact. See Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); see also STR-Medical received 3/9/2010 at page 49. 2. Entitlement to service connection for a lumbosacral spine strain with degenerative arthritis is remanded. The Veteran contends that he injured his back while on active duty when he carried full combat loads on weekly field operations. See Correspondence received 9/15/2020 at page 2. Further, he claims to he aggravated his back injury in March 2004, while on active duty when he was moving furniture. He indicated that the next morning, he could not get out of bed. Id. Although the Board regrets another remand on this issue, the Board finds a remand is warranted because the June 2021 VA examiner did not give an adequate opinion on whether the Veteran's newly diagnosed degenerative arthritis with bilateral lower extremity radiculopathy is related to service. Specifically, the June 2021 VA examiner opined that the Veteran's lumbar spine arthritis was a "new and separate diagnosis[,] the condition that the Veteran filed for and [is] appealing for was lumbar strain". See C&P Exam received 6/21/2021 at page 3. In January 2014, the Veteran filed for compensation for a low back condition. Relevant caselaw states that the Board has a duty to interpret the scope of the Veteran's claim to encompass all reasonable diagnosis attributable to his reported symptoms (here, case back pain), and the evidence obtained during the processing of the appeal, a remand for an opinion on the Veteran's degenerative arthritis of the lumbar spine is warranted. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009 see also); Murphy v. Wilkie, 983 F.3d 1313, 1320 (Fed. Cir. 2020) (explaining that, to comply with the Clemons lenient-claim-scope rule, "VA must look to all possible diseases or injuries for which the veteran could have reasonably expected to have included in the filing"). On remand, the Board will direct that the VA examiner provide an addendum opinion as to whether the Veteran's newly diagnosed degenerative arthritis with bilateral radiculopathy is related to service. 3. Entitlement to a TDIU is remanded. Finally, this decision granted service connection for sleep apnea, the assignment of its intiial rating could impact a decision on the issue of a TDIU, the issues are inextricably intertwined. A remand for entitlement to a TDIU is warranted. These matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right ankle condition aggravated beyond its natural progression by a service-connected disability. Note relevant caselaw states that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's degenerative arthritis of the lumbar spine is at least as likely as not related to service. Is it at least as likely as not that the degenerative arthritis of the lumbar spine (1) began during active service, (2) manifested within presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (Continued on the next page) The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.