Citation Nr: 21064177 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-02 026 DATE: October 19, 2021 REMANDED Entitlement to service connection for arthritis is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a neurological disorder of the right upper extremity, to include as secondary to a cervical spine disorder, is remanded. Entitlement to service connection for hypertension, to include as secondary to medications used to treat arthritis, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for residuals of a heat stroke, to include as secondary to a cervical spine disorder, is remanded. Entitlement to service connection for headaches, to include as secondary to a cervical spine disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1984 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in June 2021. 1. Entitlement to service connection for arthritis is remanded. The Veteran reports arthritis affecting the hands, wrists, elbows, knees, hips, shoulders, and ankles that is related to service. Although the Veteran's service treatment records (STRs) are negative for a hand, elbow, knee, hip, shoulder, or ankle disorders, he asserts that his military occupational specialty (MOS) as a machine gunner, and the repetitive lifting of heavy gear and ammunition would cause his body to become stiff in service. The Veteran's DD Form 214 indicates that his MOS was a machine gunner. Therefore, the Board finds the Veteran's report of repetitive heavy lifting and wearing gear during active duty consistent with the circumstances of his service and MOS. See 38 U.S.C. § 1154(a). Additionally, the Veteran reported right and left wrist pain in February 1988. Accordingly, the Board finds that the low standard detailed in McLendon is met and a VA examination and medical nexus opinion is warranted and should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a back disorder is remanded. 3. Entitlement to service connection for a cervical spine disorder is remanded. The Board acknowledges the September 2017 VA examiner's opinion that the Veteran's cervical and lumbar spine disorders were less likely than not related to an in-service injury, event, or disease. The Board finds the opinion and rationale inadequate because the sole basis for such is a lack of documented treatment in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As the examiner did not consider the Veteran's lay statements or adequately consider the Veteran's MOS as a machine gunner, the opinion is inadequate, and a remand is necessary in order to obtain an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 4. Entitlement to service connection for a neurological disorder of the right upper extremity, to include as secondary to a cervical spine disorder, is remanded. As a decision on the cervical spine claim could significantly impact a decision on the neurological right upper extremity claim, the issues are inextricably intertwined; thus, consideration of this matter must be deferred pending resolution of this claim. 5. Entitlement to service connection for hypertension, to include as secondary to medications used to treat arthritis, is remanded. The Veteran maintains that his hypertension was incurred during service. Specifically, he reported that following his in-service heat stroke he suffered from elevated blood pressure. In August 1985, during the Veteran's heat stroke, he had a blood pressure reading of 142/98. The Veteran testified that he was given medication to treat his hypertension four to five years post-service. Accordingly, the Board finds that the low standard detailed in McLendon is met and a VA examination and medical nexus opinion is warranted and should be obtained on remand. Id. In the alternative, the Veteran asserts that his hypertension is caused or aggravated by his arthritis and the medication used to treat such disability. Based on the Veteran's testimony, the Board finds that it is appropriate to expand the scope of the Veteran's hypertension claim to include entitlement to service connection on a secondary basis. Further, the Board notes that the Veteran is not service-connected for arthritis, a claim for this disability is on appeal and as noted above is being remanded for further development. 6. Entitlement to service connection for sleep apnea is remanded. The Veteran maintains that his sleep apnea was incurred during service. Specifically, he asserts that he began to have sleep problems during service including fellow service-members witnessing him snoring, stopping breathing, and gasping for air while sleeping. See June 2021 Board Hearing at 22. To this end, he maintains that he experienced sleep problems since that time. Additionally, he asserts that his sleep disorder is due to in-service asbestos exposure. Given the Veteran's lay statements, the Board finds a VA examination and medical opinion is warranted on remand to determine the etiology his sleep disorder. McLendon, supra. Additionally, the AOJ has not considered whether the Veteran's sleep disorder is related to asbestos exposure during service. On remand, the AOJ should attempt to verify the Veteran's asserted asbestos exposure, and obtain a VA examination. 7. Entitlement to service connection for bilateral hearing loss is remanded. The Board finds that the February 2015 VA audiologist's opinion is inadequate, as the examiner did not address the Veteran's conceded in-service acoustic trauma related to his MOS or his credible reports of a decline in his hearing post service. Additionally, the examiner failed to address the Veteran's May 1987 complaint of right ear irritation with pain after inserting a Q-tip into his ear. At that time, the Veteran reported that his "hearing wasn't too great." Thus, the Veteran should be afforded a new VA examination on remand that considers this relevant evidence. 8. Entitlement to service connection for residuals of a heat stroke, to include as secondary to a cervical spine disorder, is remanded. In August 1985, the Veteran suffered a heat stroke with symptoms of sweating, dizziness, nausea, and vomiting. It remains unclear from the competent evidence whether the Veteran has a current disability that had an onset during his period of service or is otherwise related to his period of service. A remand is needed to afford the Veteran with a VA examination and medical opinion to whether the Veteran has a current disability manifested by residuals of a heat stroke that had an onset during service or is otherwise related to service. See McLendon, supra. Based on the evidence of record, the Board finds that it is appropriate to expand the scope of the Veteran's residuals of heat stroke claim manifested by nausea and dizziness to include entitlement to service connection on a secondary basis. See December 2013 private treatment record (onset of headache and dizziness following a cervical epidural steroid injection). Further, the Board notes that the Veteran is not service-connected for a cervical spine disorder, a claim for this disability is on appeal and as noted above is being remanded for further development. 9. Entitlement to service connection for headaches, to include as secondary to a cervical spine disorder, is remanded. The Veteran asserts that his headaches are related to in-service injuries, or in the alternative are secondary to his cervical spine disorder. The Veteran testified that he suffered from two head injuries during service that resulted in headaches. The first episode occurred during his August 1985 heat stroke, which caused him to hit his head on the deck. See June 2021 Board Hearing at 18. The second occurred when he was "blindsided and knocked out by a Marine." Id. Additionally, a review of the evidence of record shows an onset of headache pain following a December 2013 cervical epidural steroid injection. Thus, given the current diagnosis and the Veteran's statements, the Board finds a VA examination and medical opinion is warranted on remand to determine the etiology his headache disorder. See McLendon, supra. Finally, with respect to all issues on appeal, the Veteran's conceded exposure to contaminated water at Camp Lejeune should be explored as a potential cause of his diagnosed disabilities. See Board Hearing Transcript (Tr.) at 27. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. With any necessary assistance from the Veteran, conduct all appropriate development to verify his reported exposure to asbestos in service. 4. Then schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's arthritis. The examiner must review the claims file. All necessary studies and tests should be conducted. Following a review of the claims file, the examiner should address the following: a. Identify each orthopedic disorder impacting the hands, wrists, elbows, knees, hips, shoulders, wrists, and ankles diagnosed since May 2014. If no diagnosis is rendered and only pain is identified, the examiner must indicate whether the Veteran's reported orthopedic pain causes any functional impairment. Please note that the Veteran is unable to complete a MRI scan. b. For each orthopedic disability so diagnosed, or any functional impairment identified, please opine whether it is at least as likely as not (50 percent probability or more) that such disability/impairment had their onset in or are otherwise related to service, to include as the result of the cumulative impact of his duties that included repetitive heavy lifting (up to 180 pounds, to include gear, ammunition, and machine gun) related to his military occupational specialty (MOS) as a machine gunner and/or his conceded exposure to contaminated water at Camp Lejeune? In addressing this question please discuss: (1) the February 1988 STR indicating right and left wrist pain; (2) conceded exposure to contaminated water at Camp Lejeune; (3) the Veteran's testimony as to orthopedic problems starting during service attributed to constant lifting of heavy objects and wearing heavy gear for four years; (4) his testimony that he self-medicated with over the counter medication during service; (5) his reports of continuous hands, wrists, elbows, knees, hips, shoulders, wrists, and ankles pain since service; and (6) the Veteran striking his head during his August 1985 heat stroke. In addressing this question, the examiner must assume items 3-6 as true, even despite the absence of "objective documentation." c. Please state whether a nexus between the Veteran's diagnoses or any functional impairment found and military service is medically consistent with the symptomatology reported by the Veteran in items (1)-(6) above. A complete rationale shall be given for all opinions and conclusions expressed. 5. Then obtain an addendum opinion regarding the etiology of the Veteran's back and cervical spine disorder. No additional examination of the Veteran is necessary, unless the reviewing examiner deems otherwise. Following a review of the claims file, the examiner should address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's back and cervical spine disabilities had their onset in or are otherwise related to service, to include as the result of the cumulative impact of his duties that included repetitive heavy lifting (up to 180 pounds, to include gear, ammunition, and machine gun) related to his military occupational specialty (MOS) as a machine gunner and/or his conceded exposure to contaminated water at Camp Lejeune? In addressing this question please discuss: (1) conceded exposure to contaminated water at Camp Lejeune; (2) the Veteran's testimony as to back and neck problems starting during service attributed to constant lifting of heavy objects and wearing heavy gear for four years; (3) his testimony that he self-medicated with over the counter medication during service; and (4) his reports of continuous back and cervical pain since service. In addressing this question, the examiner must assume items 2-4 as true, even despite the absence of "objective documentation." The examiner must address Dr. R.G.'s May 2014 statement. b. Please state whether a nexus between the Veteran's spinal fusion, degenerative disc disease of the cervical spine with cervical radiculopathy of the right upper extremity, degenerative arthritis of the spine, degenerative disc disease, and lumbar radiculopathy of the bilateral lower extremities (see September 2017 VA examination reports) and service is medically consistent with the symptomatology reported by the Veteran in items (2)-(4) above. A complete rationale shall be given for all opinions and conclusions expressed. 6. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's hypertension. The Veteran's claims file must be reviewed by the examiner. Any indicated tests or studies should be conducted. Based on review of the record, please address the following: a. Whether hypertension at least as likely as not (50 percent or greater probability) (1) began during active service, to include as a result of in-service heat strokes, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) , is otherwise related to an in-service injury, event, or disease, including conceded exposure to contaminated water at Camp Lejeune. In addressing this question, the examiner must address the Veteran's in-service elevated blood pressure reading, to include in August 1985 (142/98) following a heat stroke as well as his contaminated water exposure. b. Whether hypertension is at least as likely as not (50 percent or greater probability) (1) proximately due to or (2) aggravated (worsened) by a service-connected disability, to include medication to treat any such disability, such as arthritis. In addressing secondary service connection, please note that the service-connected disability need not be diagnosed or service-connected at the time hypertension is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale should be provided for all opinions and conclusions expressed. 7. Schedule the Veteran for a VA examination to determine the etiology of the Veteran's sleep disorder. The examiner must review the claims file. All necessary studies and tests should be conducted. Based on review of the record, please address the following: a. Diagnose any and all sleep disorders found or properly diagnosed since May 2014. b. Is it at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder had its onset in service or is otherwise related to service, to include as result of asbestos exposure, if verified and/or conceded exposure to contaminated water at Camp Lejeune? In formulating an opinion, please consider and discuss: (1) conceded exposure to contaminated water at Camp Lejeune; (2) any verified asbestos exposure; (3) the Veteran's testimony indicating that he would constantly stop breathing and sucking air while sleeping and was fatigued during the day during service; and (4) the Veteran's statements that he first exhibited symptoms of a sleep disorder while he was on active duty. In addressing this question, the examiner must assume items 3-4 as true, even despite the absence of "objective documentation." c. Determine, based on the same, whether a nexus between the Veteran's sleep disorder and service is "medically plausible." A complete rationale should be provided for all opinions and conclusions expressed. 8. Then schedule the Veteran for a VA audiological examination by an audiologist to determine the nature and severity of his asserted bilateral hearing loss. Any and all efforts should be made to obtain reliable results that are adequate for rating purposes. If the examination reveals hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385, a medical opinion addressing the etiology of the Veteran's hearing loss should be secured. Based on the examination and review of the record, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss had its onset in or is otherwise related to his active military service, to include conceded acoustic trauma therein and/or exposure to contaminated water at Camp Lejeune. In addressing the above question, the examiner must discuss and accept as true: (1) the Veteran's MOS of machine gunner and his report of inconsistent use of hearing protection (See Board Hearing Transcript at 24); (2) his May 1987 complaint of right ear irritation with pain following a Q-tip injury as well as his report that his "hearing wasn't too great;"(3) that he has not experienced the high levels of noise since service as he did during service; and (4) that his hearing loss has continued to progressively decline over the years. Determine, based on the same, whether a nexus between the Veteran's hearing loss and service is "medically plausible." 9. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed heat stroke residuals. The examiner must review the claims file. All necessary studies and tests should be conducted. a. Diagnose any and all residuals of heat stroke found or properly diagnosed since May 2014. In doing so, the examiner is asked to specifically address the Veteran's reported symptoms of headaches, dizziness, and vomiting, and indicate whether such symptoms are indicative of a present disability or functional impairment. b. Whether it is at least as likely as not (50 percent or greater probability) that any such heat stroke residuals, to specifically include the Veteran's reported symptoms of headaches, dizziness, and vomiting, if indicative of present disability or functional impairment, had their onset during the Veteran's active service or are related to an in-service disease, event, or injury, to specifically include the August 1985 incident where the Veteran was diagnosed with heatstroke, after he reportedly passed out due to overexposure to heat, as well as conceded exposure to contaminated water at Camp Lejeune. A complete rationale shall be given for all opinions and conclusions expressed. 10. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's headache disorder. The examiner must review the claims file. All necessary studies and tests should be conducted. Based on review of the record, please address the following: a. Diagnose any headache disorder or any functional impairment found. b. Determine whether it is at least as likely as not (50 percent or greater probability) that any such headache disorder, if indicative of present disability or functional impairment, had its onset during the Veteran's active service or are related to an in-service disease, event, or injury, to specifically include the (1) August 1985 incident where the Veteran was diagnosed with heatstroke, after he reportedly passed out due to overexposure to heat; (2) his presumed exposure to contaminated water at Camp Lejeune; and (3) the Veteran's testimony as to two head injuries one which occurred during the heatstroke, where he passed out and another incident where he was knocked out by a fellow servicemember. See June 2021 Board Hearing at 18. In addressing this question, the examiner must assume items 1-3 as true, even despite the absence of "objective documentation." c. Determine, based on the same, whether a nexus between the Veteran's headache disorder and service is "medically plausible." d. Whether the Veteran's headache disorder is at least as likely as not (50 percent or greater probability) (1) proximately due to or (2) aggravated (worsened) by a service-connected disability, to include a cervical spine disability. In addressing secondary service connection, please note that the service-connected disability need not be diagnosed or service-connected at the time the headache disorder is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale should be provided for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.