Citation Nr: 21061825 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-54 801 DATE: October 5, 2021 ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left elbow disability (claimed as tendonitis). 3. Entitlement to service connection for a right elbow disability (claimed as tendonitis). 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for insomnia. 7. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to insomnia. 8. Entitlement to service connection for keloids of the back of the head. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left elbow disability (claimed as tendonitis) is remanded. Entitlement to service connection for a right elbow disability (claimed as tendonitis) is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for insomnia is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to insomnia is remanded. Entitlement to service connection for keloids of the back of the head is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from July 1990 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, following the denial of the Veteran's claims in June 2018, he filed a timely Notice of Disagreement (NOD) in July 2018. The Veteran was issued a statement of the case in November 2018, and later that same month he submitted a VA Form 9, in which he requested a hearing. The Veteran's claims were originally certified to the Board in December 2018. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in May 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. Entitlement to service connection for a low back disability; left elbow disability (claimed as tendonitis); a right elbow disability (claimed as tendonitis); a left knee disability; a right knee disability; insomnia; obstructive sleep apnea (OSA), to include as due to insomnia; and keloids of the back of the head are each remanded. The Veteran has claimed that he has a current diagnosis for each of the above-listed disabilities, and that they are all due to his active-duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To begin, the Veteran testified before the undersigned Veterans Law Judge in May 2021. During the hearing, the Veteran testified that his various musculoskeletal problems occurred during service, to include a low back disability, bilateral elbow disabilities, and bilateral knee disabilities. The Veteran stated that he slipped and hurt his back during operation desert storm while he was stationed in Turkey. The Veteran testified that he went to sick call during his service but that they could not identify any current disabilities, so nothing was written down in his service treatment records. The Veteran also testified that his musculoskeletal problems may be due to his military occupational specialty (MOS), whereby he had to constantly load and unload cargo planes. As it relates to the Veteran's keloids, he testified that he was given shaving creams and acne medication during service that caused him to have an "allergic reaction." As it relates to the Veteran's claimed insomnia and obstructive sleep apnea (OSA) disabilities, he testified that other service members told him that he snored during service, and he believes that it may be due to his close sleeping proximity to the "smell from the fuel." The Veteran stated that his wife then "noticed that snoring, and sometimes [that he] actually stopped breathing." The Veteran is competent to report the symptoms he experiences, as well that which he experienced during service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the criteria for entitlement to service connection, some of the Veteran's disabilities have been confirmed, while others have not. The Veteran's claims file includes chiropractic treatment records from 2018 that confirm a current low back disability. Further records indicate that the Veteran is given medication for keloids/acne/pseudofolliculitis barbae, while a sleep study from April 2018 confirms a diagnosis of OSA. Other diagnoses however have not been confirmed, to include the claimed bilateral elbow and knee disabilities, as well as insomnia. Having said that, the Veteran has not been given a VA examination for any of the above-listed claims. While only some of the diagnoses have been confirmed, the Veteran has provided competent testimony as to each disability being due to his active-duty service. Furthermore, no etiological opinions have been rendered regarding these claimed disabilities. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. Finally, as it relates to the claimed musculoskeletal disabilities, the scheduled VA examinations must be compliant with Saunders. In Saunders v. Wilkie, the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Following Step 1, schedule the Veteran for VA examinations (or telehealth interviews, reviews of the record, etc., if an in-person examinations are not feasible) by appropriate clinicians to determine the nature and etiology of the Veteran's low back disability, obstructive sleep apnea, and keloids of the back of the head, as well as his claimed bilateral elbow disabilities, bilateral knee disabilities, and insomnia. Multiple VA examinations should be scheduled as deemed necessary. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should provide responses to the following questions: (a.) the examiner is to provide a diagnosis which accounts for the Veteran's present symptoms of his claimed bilateral elbow and bilateral knee disabilities. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as pain, or instability. Complete the "Functional Impact" section of the report. The examiner is also asked to confirm any/all diagnoses related to his claimed insomnia, his obstructive sleep apnea, his low back disability, and his keloids of the back of the head. Then, for any/all disabilities found, address: (b.) Is it at least as likely as not (50 percent or greater) that the Veteran's disabilities were caused by a disease or injury in service? **Please note new case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). The examiner is reminded that the Veteran has provided competent lay statements and testimony, describing how he believes each of his disabilities is due to his active-duty service. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.