Citation Nr: 21062809 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-12 601 DATE: October 12, 2021 REMAND Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connections for migraines is remanded. Entitlement to service connection for a bilateral hip condition is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a respiratory disorder (diagnosed as both obstructive and restrictive defect), is remanded. Entitlement to service connection for a heart condition, to include coronary artery disease and arrhythmia, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for bilateral shoulder disability is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee condition is remanded. 2. Entitlement to service connections for migraines is remanded. 3. Entitlement to service connection for a bilateral hip condition is remanded. 4. Entitlement to service connection for a low back condition is remanded. 5. Entitlement to service connection for a respiratory disorder (diagnosed as both obstructive and restrictive defect) is remanded. 6. Entitlement to service connection for a heart condition, to include coronary artery disease and arrhythmia, is remanded. 7. Entitlement to service connection for sleep apnea is remanded. 8. Entitlement to service connection for bilateral shoulder disability is remanded. The Board finds that the January 2017 VA examination is inadequate for adjudicative purposes, as the opinion is based on inaccurate factual premises. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.") (citing Reonal). In regard to the Veteran's low back condition, the examiner stated that "there is no evidence of persistent low back pain in proximity to his current diagnosis of degenerative joint disease and degenerative disc disease." Additionally, the examiner stated that "medical examinations that I could locate in the records did not report chronic low back pain." However, the Veteran's VA treatment record since 2009 report "significant degenerative changes" in the lower lumbar spine. Further, the Veteran's service treatment records (STR) contain well-documented reports of persistent/chronic low back pain. See, e.g., June 1989 STR. Similarly, the examiner opined that there was only one report of right knee strain during service, and there was no continuity of care. However, the Veteran's VA treatment records show that the Veteran sought treatment for his "chronic knee pain" since service. See January 1999 VA Treatment Record. Regarding his migraines, the examiner reported that there were no in-service complaints, however, STRs indicate that the Veteran did in fact report complaints of headaches in service. See March 1981, April 1987, and November 1987 STRs. Regarding his bilateral hip condition, while treatment records were listed in the opinion, the examiner did not render an opinion as to whether it is at least as likely as not the Veteran's bilateral hip condition was related to service. Regarding his respiratory disorder, the Veteran's current medical records reflect that he has been diagnosed with both restrictive and obstructive lung disease. The Veteran testified that he provided confidence chamber testing to cadets about three or four months out of the year, and that his treating physicians thought that respiratory disorder could have been caused or exacerbated by his exposure to tear agents and solid camphor. The Board notes that the Veteran's recollections of a doctor opinion hold some probative value which meets the low threshold for obtaining examination and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board next notes that the Veteran reported that a cardiac nurse informed him of an interrelationship between CAD, COPD and apnea. These issues are potentially inextricably intertwined with the remanded issues and adjudication must be deferred. Lastly, VA has a duty to assist the Veteran in obtaining relevant records to support his claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (finding that VA's duty to assist specifically includes requesting information from other federal departments); see also 38 C.F.R. § 3.159(c)(2). During the Veteran's March 2021 hearing, he stated that he receives treatment for his appealed claims through Medicare. However, the evidence of record does not reflect the receipt of these private treatment records or Medicare records. As such, a remand is required to fulfill the Board's duty to assist the Veteran to acquire outstanding records. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding private treatment records, to include any outstanding Medicare records, and provide the Veteran the opportunity to complete and return VA Forms 21-4142 and 21-4142a. All efforts to obtain these records should be documented and any negative response should be recorded in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R.§ 3.159(c)(2). Notify the Veteran if the records cannot be located. 2. After the development requested above has been completed, schedule the Veteran for a VA examination with an appropriate clinician regarding the nature and etiology of his heart condition, bilateral hip condition, bilateral knee condition, migraines, heart condition, sleep apnea, respiratory and low back condition. The examiner should opine for the following: a) For each diagnosed bilateral hip condition, whether it is at least as likely as not (a 50 percent or greater probability) that such disorder(s) began in service, was caused by service, or is otherwise related to service, including whether any such disability is causally related to a leg length disparity first noted in service. b) For each diagnosed bilateral knee condition, whether it is at least as likely as not that such disorder(s) began in service, was caused by service, or is otherwise related to service, including whether any such disability is causally related to a leg length disparity first noted in service. c) For each diagnosed low back condition, whether it is at least as likely as not that such disorder(s) began in service, was caused by service, or is otherwise related to service, including whether any such disability is causally related to a leg length disparity first noted in service. d) For each diagnosed heart disability, whether it is at least as likely as not that such disorder(s) began in service, was caused by service, or is otherwise related to service. e) Whether it is at least as likely as not that the Veteran's migraines began in service, was caused by service, or is otherwise related to service. f) For both the diagnosed restrictive and obstructive lung disease, whether it is at least as likely as not the Veteran's restrictive and/or obstructive lung disease began in service, was caused by service, or is otherwise related to service, to include teaching confidence chamber testing to cadets about three or four months out of the year with exposure to tear agents and solid camphor. The examiner should specifically discuss whether there is any medical reason to accept or reject the proposition that the Veteran's reported injuries through his MOS duties in service caused his current knee, back, and hip disabilities. In doing so, the examiner should consider the following evidence: A December 1975 report of medical examination wherein the Veteran described frequent headaches and chronic smokers cough; A September 1977 examination wherein the Veteran reported chronic cough and chronic colds treated with medications as needed; Treatment in February 1981 for low back pain of 2 days duration; Treatment in April 1987 for tension headaches; Treatment in November 1987 for suspect muscle tension headache; STRs in June and July 1989 reflecting an assessment of L4-5 radiculopathy symptoms (sx) while attending "back" school noting a "hx of recurrent pain on + off x 3-4 yrs" without any specific trauma; A June 1989 lumbosacral series x-ray was interpreted as showing a lytic lesion of the left iliac wing but a negative bone scan; A July 1989 cardiovascular evaluation reflecting a history of ectopy not requiring treatment unless needed for symptoms; An August 1989 cardiology consultation, noting dyspnea on exertion (DOE) and also include echocardiogram, electrocardiograph and exercise treadmill test (ETT), found no evidence of organic heart disease; A May 1990 report of "back problem" with a report of being in physical therapy and history of right lateral knee pain of one weeks duration assessed as right knee pain rule out r/o meniscal tear v. right collateral ligament sprain; An April 1991 assessment of lower back pain possibly HNP; A May 1991 orthopedic evaluation for recurrent low back pain reflecting an assessment of dysfunction low back pain with one longer leg with a notation to prescribe the Veteran a heel lift An October 1991 report of shortness of breath symptoms; Treatment in February 1992 for low back pain of one weeks' duration; The February 1992 retirement examination wherein the Veteran reported a history of frequent or severe headaches, sinusitis, shortness of breath, chronic cough, palpitation or pounding heart, heart trouble, and recurrent back pain; May 1996 records from USAF Academy evaluation for chronic right hip pain including a CT scan; An April 1998 x-ray of the right hip interpreted as showing severe osteoarthritic changes; A negative x-ray examination of the right knee in January 1999; An October 2000 chest x-ray examination noting an interval increase in the size of the heart since 1994, a mildly tortuous descending aorta and no evidence of acute cardiopulmonary disease; A February 2003 x-ray showing a small bone island in the proximal tibia; A January 2005 clinic record noting occasional episodes of chest pain; A January 2007 x-ray interpreted as showing mild spondylitic change of the lumbar spine and mild aortic atherosclerosis; A history of coronary artery disease with inferior ST-segment elevation myocardial infarction in October 2009; A January 2010 record from St. Francis Medical Center noting a recent diagnosis of asthma; A May 2010 x-ray showing mild left hip degenerative osteoarthritis with a stable appearance since 2008; An August 2010 x-ray showing mild medial and lateral compartment joint space narrowing within the right knee as well as mild facet degenerative change from L3-4 to L5-S1, Grade I anterolisthesis of L5 on S1, and mild to moderate degenerative change at L5-S1; and aneurysmal dilation of the right common iliac artery; A November 2010 Home Health Certification and Plan of Care noting a history of old myocardial infarction in January 2009 as well as a diagnosis of hypertensive heart disease; A March 2012 assessment of exertional dyspnea associated with central obesity and suspected restrictive airway disease; A June 2013 diagnosis of both restrictive and obstructive lung disease following pulmonary function testing; A September 2014 x-ray examination interpreted as showing moderate hyperexpansion of the lungs; A January 2015 medical record noting a history of moderate headaches by 2 months which usually started in the morning; The examiner must provide all findings, along with 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. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. The lack of documented treatment cannot be the basis of a negative opinion. 3. Thereafter, readjudicate the claims. If any benefit sought on appeal remains the denied, furnish the Veteran and his representative a supplemental statement of the case. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.