Citation Nr: 21064146 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 09-08 049 DATE: October 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for somnambulism is denied. Entitlement to an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy is granted. Entitlement to an initial disability rating of 40 percent, but no higher, for right lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for a neck condition, to include cervical strain with degenerative arthritis, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for tremors is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss manifested more than one year after separation and is not shown to be causally or etiologically related to an in-service event, injury or disease. 2. The preponderance of the evidence weighs against finding the Veteran currently has or had somnambulism during the appeal period. 3. The Veteran's left lower extremity radiculopathy was manifested by moderate incomplete paralysis. It was not manifested by moderately severe or severe incomplete paralysis, or complete paralysis. 4. The Veteran's right lower extremity radiculopathy was manifested by moderately severe incomplete paralysis. It was not manifested by severe incomplete paralysis with marked muscular atrophy or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2019); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for somnambulism have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2019); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). 3. The criteria for an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2019); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8720 (2020). 4. The criteria for an initial disability rating of 40 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2019); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8720 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to September 1981. He appealed numerous rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). First, he appealed a September 2007 rating decision denying entitlement to service connection for a neck condition. For this issue, a Board of Veterans' Appeals (Board) hearing was held in September 2012. A transcript is of record. Then, the Veteran appealed an August 2013 rating decision denying initial ratings greater than 20 percent for right lower extremity radiculopathy and 10 percent for left lower extremity radiculopathy, and a December 2014 rating decision denying entitlement to service connection for tremors, OSA, somnambulance, and bilateral hearing loss. Finally, the Veteran also appealed a May 2018 rating decision denying entitlement to TDIU. After numerous Board remands, a July 2018 Board decision denied entitlement to service connection for a neck condition, and denied reopening the claims for service connection for somnambulance and bilateral hearing loss. The July 2018 Board decision also remanded the issues pertaining to tremors, OSA, and bilateral lower extremity radiculopathy. The Veteran appealed the July 2018 Board decision denying his appealed issues. In a February 2020 Memorandum Decision, the Court of Appeals for Veterans Claims (Court) vacated the Board's decision pertaining specifically to service connection for somnambulism, hearing loss, and a neck condition, remanding these issues for action consistent with the Memorandum Decision. In November 2020, the Board reopened the Veteran's claims for service connection for somnambulism and bilateral hearing loss, and remanded all of the aforementioned issues for further development. Subsequent to the development, the appeal is now back before the Board. Service Connection A veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence 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, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). However, in the absence of proof of a current disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (2013). Hearing loss is such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral Hearing Loss The Veteran has bilateral hearing loss for VA purposes, thus the first Shedden element is met. See May 2021 VA examination report. The record reflects the Veteran's military occupational specialty (MOS) in the Navy was as an operations specialist. See DD Form 214. The May 2021 VA examiner noted this MOS had a moderate probability for hazardous noise exposure. The Veteran contends he was exposed to "high-frequency radio nets and gunfire, without hearing protection worn." See May 2021 VA examination report. Thus, the Board finds the second Shedden element is also met. As such, the crux of this issue centers on whether the Veteran's bilateral hearing loss is etiologically related to his military acoustic trauma. Bilateral hearing loss benefits from a relaxed evidentiary standard if the evidence of record can show manifestations of symptoms sufficient to identify the disease in service and establish chronicity at the time. See 38 C.F.R. § 3.303(b). Both the Veteran's 1979 entrance examination and September 1981 separation examination reflect his hearing was within normal limits; therefore, his hearing loss did not start in service. In November 1981, two months after separation, the Veteran filed a claim for service connection for bilateral hearing loss. A January 1982 VA examination report noted a diagnosis of bilateral sensorineural hearing loss; however, the corresponding audiology examination reflects normal hearing for VA purposes. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. At the January 1982 VA examination, the Veteran's Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 20 - 25 LEFT 10 10 10 - 30 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left. Under these results, the Veteran did not have bilateral hearing loss for VA purposes at the January 1982 VA examination. While the Veteran is competent to testify that he noticed decreased hearing during service, he is not competent to offer opinions on complex medical matters. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, his opinion and lay statements, in this regard, are not competent evidence and thus not probative of whether he had bilateral hearing loss for VA purposes in-service or shortly after service. Importantly, the medical evidence discussed above contradicts the Veteran's statements of record that his hearing loss began in service. Thus, the record does not reflect any chronic symptomatology starting in service or within one year of separation from service. As such, 38 C.F.R. § 3.309(a) does not apply. See Walker, 708 F.3d at 1339. However, the Board must still analyze the third Shedden element for direct service connection. In May 2021, a VA examiner conducted an audiology examination and interviewed the Veteran. The Veteran noted his in-service noise exposure was without hearing protection, while his post-service noise exposure, such as motorcycle riding, target shooting, and the occasional woodworking was all conducted with hearing protection worn. After considering the lay and medical statements of record, the VA examiner opined the Veteran's current hearing loss was less likely than not related to his in-service noise exposure. As rationale, the VA examiner noted no significant hearing loss or threshold shift was noted during service. She also noted the Veteran did not seek treatment or note hearing loss during service. The VA examiner cited to medical literature noting an insufficient scientific basis among the current research and understanding of auditory physiology that rendered it unlikely "permanent hearing loss directly attributable to noise exposure will develop long after [the] noise exposure." The Board finds this medical literature does not, when read as a whole, contain significantly contradictory findings or conclusions, and is probative as the medical literature directly stated that research concluded a prolonged delay in the onset of noise-induced hearing loss was unlikely. See McCray v. Wilkie, 31 Vet. App. 243, 249 (2019). Based on the VA examiner's analysis, she noted no evidence supports that the Veteran's current hearing loss was caused by his military service and, more likely, his hearing loss was caused by post military noise exposure and age-related hearing loss. As the VA examiner used the medical literature, in conjunction with her medical knowledge and the evidence of record, to provide a reasoned medical explanation taking the Veteran's lay statements into consideration, the Board finds the opinion probative. See McCray v. Wilkie, 31 Vet. App. 243, 249 (2019). The May 2021 VA opinion is also supported by the record. For example, February 2011 private ENT records note the Veteran sought treatment for chronic tinnitus and noted he "feels like he has associated hearing loss." The Veteran's physician diagnosed him with "mild to moderate hearing loss" and stated this hearing loss "appears to be of a hereditary or familial origin" and "was not typical for noise induced loss." See February 2011 ENT records. In October 2014, the physician noted "little change" in his sensorineural hearing loss from a previous March 2012 auditory examination. A June 2018 ENT record noted the Veteran's long-standing hearing loss "happened in the military and has been relatively stable;" however, this reflects the Veteran's reported medical history at the appointment, and is not probative evidence of a nexus. Additionally, this statement is contradicted by actual in-service and post-service medical evidence, noted above. Overall, the evidence of record does not reflect the Veteran's current hearing loss was caused by his in-service noise exposure. Thus, the preponderance of the evidence weighs against the Veteran's claim and service connection for bilateral hearing loss is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 53. Somnambulism For this appeal, the Veteran initially filed a claim for service connection for a "mental health condition," among other issues in May 2014. The Veteran did not file a claim seeking service connection for somnambulism; however, in a December 2014 rating decision, the AOJ denied entitlement to service connection for somnambulism, noting the issue was previously denied in a July 1983 Board decision and was encompassed in his history of mental health conditions. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran has subsequently been service connected for an anxiety disorder. See March 2017 rating decision. The Veteran contends, and service treatment records reflect, somnambulism in service, which contributed to the Veteran's early separation from service. However, the record does not reflect the Veteran currently has somnambulism or had somnambulism at any time during the appeal period. In April 2021, the Veteran was afforded a VA examination where he told the examiner "he has not had a sleepwalking incident since his last fall event [in August 1981] in service." The Board finds this evidence probative. Indeed, the Veteran's vast records note no evidence or complaints of somnambulism during the appeal period. While it is noted the Veteran suffers from sleep apnea, the issue of entitlement to service connection for sleep apnea is currently under appeal herein and will be discussed more fully below. Additionally, the record reflects longstanding insomnia, which is consistently attributable to the Veteran's service-connected musculoskeletal disabilities with chronic pain, service-connected anxiety, and sleep apnea. See December 2007 and March 2008 Sleep Disorder Center records; see also March 2017 VA examination report ("anxiety disorder related to his service-connected orthopedic issues and related to chronic pain" with symptoms of poor sleep). The Veteran himself attributed his "insomnia solely to his problems with pain." See August 2010 VA treatment records. Thus, while there are issues with the Veteran's ability to sleep soundly, there is no evidence of record indicating the Veteran has had somnambulism at any point in the appeal period. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). Since there is no probative evidence the Veteran currently has somnambulism, or had somnambulism during the appeal period, the Board finds the first element for service connection is not met. See Brammer, 3 Vet. App. at 225. Accordingly, the Board finds the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for somnambulism. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Increased Rating Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Also, when there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran is currently rated under Diagnostic Code (DC) 8720 for bilateral lower extremity radicular symptoms, with an initial 10 percent rating for the left lower extremity and a 20 percent rating for the right lower extremity. See January 2021 rating decision codesheet. Service-connected disabilities rated under DC 8720, for sciatic neuralgia, are rated under the criteria of DC 8520. Under DC 8520, a 10 percent disability rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent disability rating is warranted for moderate incomplete paralysis; a 40 percent disability rating is warranted for moderately severe incomplete paralysis; and, a 60 percent disability rating is warranted for severe incomplete paralysis with marked muscle atrophy. See 38 C.F.R. § 4.124a, DC 8520. Finally, an 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. Descriptive words such as "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." See 38 C.F.R. § 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Of record are five VA examinations during the appeal period that reflect the Veteran's bilateral radicular symptoms. The Board will address each exam in addition to the other medical and lay evidence of record. Left Lower Extremity Radiculopathy In July 2013, a VA examiner noted the Veteran had decreased sensation in his lower leg and ankle, hypoactive reflexes in the knee and ankle, and radicular symptoms of severe intermittent pain and moderate numbness. At a June 2017 VA examination, the Veteran still had decreased sensation in his lower leg and ankle, but also in his foot and toes. Testing of the left leg revealed normal reflexes and muscle strength, and symptoms only included mild intermittent pain, paresthesias, and numbness. In March 2018, a VA examiner noted no left leg symptoms of radiculopathy despite the Veteran noting "pain in the posterior left thigh." Thus, regarding the severity of radiculopathy solely of the left leg, the March 2018 VA examination report is not probative. Despite the Veteran's normal muscle strength, senses, and reflexes at the November 2019 VA examination, the examiner noted mild intermittent pain, paresthesias, and numbness. Finally, an April 2021 VA examiner similarly noted normal muscle strength and reflexes, but found decreased sensation in the thigh, knee, foot, and toes. The Veteran also reported constant moderate numbness of his thigh, severe intermittent sharp shooting pain down the back of his thigh into his foot, but denied constant nerve pain and paresthesias. See April 2021 VA examination report. The VA examiner noted severe intermittent pain and moderate numbness of the left leg. Overall, the Board finds the Veteran's left lower extremity radicular symptoms above more closely reflect moderate incomplete paralysis. The reported symptoms do not reflect, however, moderately severe or severe incomplete paralysis. For example, the Veteran never noted to have constant pain, only intermittent pain ranging from mild to severe intensity. See, e.g. July 2013 and November 2019 VA examination reports. Additionally, his left leg consistently had full muscle strength and exhibited normal reflexes at four of five examinations, with only the July 2013 examination noting hypoactive knee and ankle reflexes. This was also reflected in the remainder of the record. See, e.g., July 2013 Piercey neurology records (normal reflexes, full muscle strength); February 2017 Advanced Pain Management Center (APMC) records (bilateral lower extremities normal strength, tone, and stability); August 2017 Pain Care Specialists records (full muscle strength, achilles reflex absent). Further, the Veteran only had decreased sensation in two examinations; the July 2013 VA examiner noted decreased sensation to the lower leg and ankle while the April 2021 VA examiner noted decreased sensation at the thigh, knee, foot, and toes. April 2012 Keiperspine treatment records note the Veteran has occasional numbness in his foot. As the Veteran does not have constant pain or any constant severe symptoms of record, and has maintained sensation and full muscle strength, the Board finds the Veteran's symptoms do not reflect moderately severe or severe incomplete paralysis of the left lower extremity. Additionally, the Veteran consistently sought treatment for right lower extremity radiculopathy, not the left. See, e.g. August 2017 Pain Care Specialists (PCS) records. In fact, an initial April 2013 MRI report noted no left sciatic nerve abnormalities. Not until later in the appeal period does an MRI show disc protrusion into the left L5 nerve root. See April 2021 VA examination report (June 2019 MRI report). Based on the aforementioned, in conjunction with the entire record, the Board finds the Veteran is entitled to an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy. Right Lower Extremity Radiculopathy As stated above, the Veteran consistently sought treatment for radicular symptoms in his right lower extremity. See, e.g., July 2013 Piercy Neurology records (right lower extremity numbness, decreased sensation); February 2017 APMC records (right sided radicular symptoms); August 2017 PCS records (pain radiates to "right posterior thigh down to lateral foot"). In July 2013, a VA examiner noted the Veteran had hypoactive knee and ankle reflexes, no sensation in his lower leg, ankle, foot, and toes. He also noted moderate constant pain, severe intermittent pain, and severe numbness. See July 2013 VA examination report. In June 2017, a VA examiner found the Veteran's only symptoms included mild intermittent pain, paresthesias, and numbness; however, this does not accurately reflect the severity of the Veteran's symptoms during this time. For example, February 2017 APMC records reflect severe right lower extremity radicular impairment and August 2017 PCS records reflect absent reflexes in the ankle and decreased sensation. Later, a March 2018 VA examiner noted the Veteran had severe paresthesias with moderate intermittent pain and numbness. In November 2019, a VA examiner noted the Veteran had constant mild pain with moderate intermittent pain and mild paresthesias and numbness. Finally, at the April 2021 VA examination, the Veteran noted constant numbness at the lateral thigh and severe sharp shooting pains when he lifts his leg. The April 2021 VA examiner noted the Veteran had constant moderate pain with severe intermittent pain, mild numbness and paresthesias. The Board notes the Veteran's reported symptoms were consistent during the entire appeal period and more closely approximate moderately severe incomplete paralysis, warranting a 40 percent rating. The Veteran's right lower extremity radiculopathy does not warrant a rating greater than 40 percent as the record does not reflect severe incomplete paralysis with marked muscular atrophy or complete paralysis. For example, right leg muscle strength was consistently noted to be full and unimpaired. See, e.g., July 2013 and March 2018 VA examination reports. The April 2021 VA examiner noted the Veteran's muscle strength was a four out of five at the hip, knee, and ankle, but this does not reflect muscular atrophy. In fact, no VA examiner found muscle atrophy in the right lower extremity. Id. This is further reflected in the Veteran's private treatment records. See, e.g., January 2013 Keiperspine treatment records; July 2013 Piercey Neurology records; August 2017 PCS records. As such, the Board grants an initial disability rating of 40 percent, but no higher, for right lower extremity radiculopathy. REASONS FOR REMAND Neck condition The Veteran contends his neck condition, to include cervical strain with degenerative arthritis, is related to his two in-service falls while sleepwalking. See July 1981 and August 1981 service treatment records. Most recently, the Board remanded to obtain an opinion regarding the etiology of the Veteran's neck condition as no prior VA medical opinions were adequate. In June 2021, a VA examiner opined the Veteran's neck condition was less likely than not related to his falls in service. The VA examiner noted the history of the Veteran's neck symptoms in the supporting rationale section of the medical opinion, but provided no actual rationale for his opinion. Further, the VA examiner did not note the numerous treatment records reflecting neck pain and reduced flexion. See, e.g., June 1996 Central Medical Consultants ("pain in the cervical spine" with flexion limited to 30 degrees); November 2003 Kaiser Permanente records (chronic pain neck). For instance, November 2000 MDSI physician group records reflect the Veteran sought treatment for neck pain after not having a regular physician for years due to lack of insurance. At the appointment, the Veteran stated he regularly performed range of motion exercises several times a day to reduce neck pain and the physician recorded his flexion and extension at 20 degrees. See November 2000 MDSI records. As many pertinent records between service and the appeal period were not considered and the VA examiner provided no rationale for his medical opinion, a remand is required. OSA In June 2018, the Board remanded to obtain an opinion regarding whether the Veteran's OSA was caused or aggravated by the prescribed medications the Veteran received for his service-connected musculoskeletal conditions during the appeal period. In November 2019, a VA examiner noted the Veteran's "service-connected conditions would be causative for sleep apnea," but the Veteran "was not on any medications at time of sleep apnea diagnosis." This is inaccurate. The record reflects the Veteran first sought treatment for sleep apnea symptoms in November 2004. See November 2004 ENT treatment records. November 2004 VA treatment records note the Veteran's active medication included Lyrica, Lorazepam, Baclofen, and Methocarbamol. The record reflects the Veteran has had a long history of using prescribed narcotics such as oxycontin and hydrocodone, especially around the period he was diagnosed with sleep apnea. See, e.g. November 2008 VA treatment records ("treated at outside pain clinic with narcotics in the past for two years. He weaned off himself and found that Lyrica helped him better"). Thus, this opinion is inaccurate and inadequate. See Reonal v. Brown, 5 Vet. App. 458,461 (1993). On remand, a reviewing clinician should provide a detailed opinion regarding secondary service connection. Additionally, an April 2021 VA examiner opined that the Veteran's OSA was less likely than not due to service. As rationale, the examiner noted medical literature reflects risk factors for OSA include "old age, male gender, obesity," and the Veteran had risk factors of "aging, male gender, and a BMI that is currently in the obese-range at 47." See April 2021 VA examination report. The Board finds this rationale inadequate as the Veteran was also of the "male gender" and described as "slightly obese" at his January 1982 VA examination, conducted just four months after his separation from service. Thus, shortly after his separation from service, the Veteran had two-thirds of the risk factors noted by the April 2021 VA examiner, but this was not addressed. On remand, an adequate opinion is required. Tremors An April 2021 reviewing clinician provided a thoughtful analysis in her medical opinion regarding whether the Veteran's current tremors are related to his two in-service falls. In the opinion, the clinician explained that the Veteran's tremors are known as familiar tremors or essential tremors and are likely genetic in nature as the record reflects the Veteran's daughter was diagnosed with a similar tremor around the age of 20. Service connection may not be granted for congenital or developmental defects as they are not considered a disease or injury for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9. For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition with is more or less stationary in nature, and is generally incapable of improvement or deterioration; in contrast, unlike a defect, a "disease" is a condition that can improve or deteriorate. See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Therefore, service connection may be granted for any additional disability that results where a congenital or developmental disease is subject to, or aggravated by, a superimposed disease or injury; as a corollary, service connection may not be granted for a congenital defect alone. "Any worsening - any change at all - might demonstrate that the condition is a disease, in that VA considers defects to be 'more or less' static and immutable." Id. at 394-95. As the April 2021 VA examiner provided an opinion noting the Veteran's tremor is genetic in nature, a remand is required to determine if his tremor is a defect or a disease, and whether his in-service falls aggravated his tremors. TDIU The record suggests the Veteran would "have difficulty with any employment which would not accommodate for the functional impact of his neck condition." See, e.g., June 2021 VA examination report. The Veteran also does not currently meet the schedular criteria for TDIU during the entire appeal period. See January 2021 rating decision codesheet. Since the decision on the remanded issues impacts a decision on entitlement to TDIU, the issues are inextricably intertwined. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain all relevant updated private and VA treatment records that have not already been associated with the claims file. 2. Thereafter, obtain an opinion from an appropriately qualified clinician, to determine the nature and etiology of the Veteran's neck condition, to include cervical strain and degenerative arthritis. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following: Is it at least as likely as not (a 50 percent probability or more) the Veteran's current neck condition, to include cervical strain and degenerative arthritis, was incurred in service or is otherwise related to his in-service July 1981 and August 1981 falls downstairs while sleepwalking? The reviewing clinician is directed to consider the following: (1.) July 1981 service treatment records noting complaints of back spasms, cervical tenderness, and pain in the right jaw; (2.) June 1996 Central Medical Consultants records noting cervical spine pain and flexion limited to 30 degrees; (3.) November 2000 MDSI physician group records reflecting the Veteran sought treatment for pain after not having a regular physician for years due to lack of insurance, but he regularly performed range of motion exercises several times a day to reduce neck pain, and the physician recorded his flexion and extension at 20 degrees; (4.) March 2005 Salem Hospital imaging records noting degenerative changes of "mild spurring anteriorly and inferiorly at C4, C5, and C6;" and (5.) March 2006 Veteran correspondence noting the symptoms after his in-service fall. The reviewing clinician should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the reviewing clinician cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the reviewing clinician must provide the reasons why an opinion would require speculation. 3. Thereafter, obtain an opinion from an appropriately qualified clinician, to determine the nature and etiology of the Veteran's OSA. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following: (a). Is it at least as likely as not (a 50 percent probability or more) the Veteran's OSA was incurred in or is otherwise related to his in-service somnambulism and sleep disturbance? The reviewing clinician is directed to consider the following: (1.) August 1981 Medical Board Report noting the Veteran has a history of sleep disturbance; (2.) January 1982 VA examination report noting the Veteran is "slightly obese;" (3.) August 1996 Prairie Medical Records noting the Veteran sleepwalked in service "and feels that he has not been able to sleep soundly since that time;" and (3.) November 2004 ENT records noting "loud snoring occurring in all positions according to his wife" and a diagnosis of obstructive sleep disorder. (b). Is it at least as likely as not (a 50 percent probability or more) that the Veteran's OSA was (1) caused or (2) aggravated by his service-connected conditions, to include the prescribed medication the Veteran takes for pain management? The reviewing clinician is directed to consider the following: (1.) November 2004 ENT records noting "loud snoring occurring in all positions according to his wife" and a diagnosis of obstructive sleep disorder; and (2.) November 2004 VA treatment records noting the Veteran's active medication included Lyrica, Lorazepam, Baclofen, and Methocarbamol; June 2008 Pain Management NW records noting numerous medications, including Lorazepam, Baclofen, Robaxin, Lyrica, and OxyContin; and (3.) November 2008 VA treatment records noting the Veteran was treated at outside pain clinic with narcotics in the past for two years. The reviewing clinician should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the reviewing clinician cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the reviewing clinician must provide the reasons why an opinion would require speculation. 4. After the develop of #1-2 above is complete, obtain an opinion from an appropriately qualified clinician, preferably by the clinician who provided the April 2021 medical opinion, to determine the nature and etiology of the Veteran's tremors. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician whether a new examination is necessary to provide an adequate opinion. Following review of the record, the reviewing clinician should provide an opinion as to the following: (a). Is it at least as likely as not that the Veteran's tremor is solely attributable to a congenital disease (meaning the condition can improve or deteriorate) instead of a congenital defect (meaning the condition is static in nature, and cannot generally improve or deteriorate)? (b). If a congenital disease, is it at least as likely as not that the Veteran's tremor was aggravated or worsened by the Veteran's time in service, to include his July 1981 and August 1981 in-service falls down steps while sleepwalking? The reviewing clinician should discuss the natural progression of the condition. (c). If tremors are a congenital defect, does the Veteran have a superimposed disease or injury? If so, is it at least as likely as not that the Veteran's superimposed disease or injury was either incurred in, or is otherwise attributable to his time in service? (d). If the Veteran's tremor is neither a congenital disease nor congenital defect, is it at least as likely as not that the tremor was either incurred in, or is otherwise attributable to, his time in service, to include his July 1981 and August 1981 in-service falls while sleepwalking? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. (Continued on the next page) 5. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with an SSOC and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.