Citation Nr: 21064763 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-37 230 DATE: October 21, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disease (COPD), is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for sterility is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to January 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2019. A transcript of that hearing is of record. These matters were denied by the Board in a November 2019 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court issued a memorandum decision which served to set aside the portions of the November 2019 Board decision that are relevant to these issues and remand them to the Board. The April 2021 VA Form 21-22a named a private attorney as the Veteran's representative only for the issues of service connection for disabilities of the sacrolumbar spine, left ankle, sterility, and respiratory disease. The issues of service connection for sleep apnea and service connection for coronary artery disease are not covered by that VA Form 21-22a, and are not discussed in this decision. They will be addressed in a separate decision. 1. Entitlement to service connection for a low back disability is remanded. In a June 2021 brief, the Veteran's representative identified relevant private treatment records surrounding a 1991 motor vehicle accident affecting the Veteran's back. A remand is required to allow VA to obtain authorization and request these records. Upon remand the AOJ should also ensure that any outside medical records that have been scanned into the VA medical system are associated with the claims file. The Board cannot make a fully-informed decision on this issue because the December 2013 VA examination did not discuss the Veteran's competent lay testimony of back pain since service. Upon remand, a supplemental medical opinion should be obtained that considers this lay testimony, as well as the article provided by the Veteran's attorney about the prevalence of osteoarthritis in veterans. The Board is not making a finding as to the credibility of the Veteran's lay statements regarding the history of his back pain at this time. Medical records that are being requested by this remand may contain corroborating or contradictory statements. 2. Entitlement to service connection for a respiratory disability, claimed as COPD is remanded. A new examination should be obtained that considers the argument set forth in a June 2021 brief that the Veteran's respiratory disability is not in fact COPD, but rather air trapping and morbid obesity that is secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD) and related medication. The examiner should also consider the possibility that the Veteran has a respiratory disability caused by asbestos exposure during service. This opinion should also discuss the history of smoking set forth in private treatment records, which contradict the smoking history used in the rationale of the negative December 2013 nexus opinion. 3. Entitlement to service connection for a left ankle disability is remanded. A VA examination should be scheduled to determine whether the Veteran has functional impairment that qualifies as a left ankle disability, and if so, discusses whether that left ankle disability is caused by an injury in service. The Board is not currently making a credibility determination regarding the Veteran's lay statements about his history of left ankle pain. Additional treatment records that are being requested on remand may provide corroborating or contradictory evidence. 4. Entitlement to service connection for sterility is remanded. A remand is necessary to obtain deck logs for the USS Ranger for the period identified below to determine in-service radiation exposure. The Board is not currently making a finding as to the competence or credibility of the Veteran's lay statements as to radiation exposure. An attempt should also be made to obtain private treatment records from the facility that told the Veteran that he was infertile. Additionally, a VA examination should be obtained to determine whether the Veteran has sterility that is caused by in-service gonococcic urethritis. The matters are REMANDED for the following action: 1. Obtain any outside treatment records that have been scanned and added to the VA medical system, and associate them with the claims file, to include the scanned outside medical records referenced in July 2011, May 2014, June 2014, August 2014, October 2014, April 2015, May 2015, June 2015, July 2015, August 2015, December 2015, and April 2018 VA treatment notes. 2. Ask the Veteran to complete a VA Form 21-4142 for any private physician or facility where the Veteran received relevant treatment whose records have not already been associated with the claims file, including any records from before October 2005, records from the facility where he was treated for his back and other injuries following the 1991 motor vehicle accident and records from the facility where he was told he was he was sterile shortly after service. 3. Obtain deck logs for the USS Ranger from June 1975 to January 1979. 4. After completing directives one and two, requesting treatment records, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's low back disability is at least as likely as not (50 percent or greater probability) related to service, to include the in-service fall reported by the Veteran and corroborated by a June 2014 statement from a fellow servicemember, the March 1978 report of back pain in the Veteran's service treatment records (STRs), and the follow-up from later that month determining the back pain to musculoskeletal in nature. The opinion must be supported by a complete rationale that discusses the Veteran's competent report of back pain since service that worsened at the time of a 1991 motor vehicle accident, as noted in several VA treatment records as early as October 2015. 5. Schedule the Veteran for a VA examination for his respiratory disability, to include COPD, asbestosis, and air trapping. The examiner is to identify all current respiratory disabilities. In doing so the examiner must consider the argument set forth by the Veteran's representative in a June 2021 brief that the Veteran does not have COPD but rather has air trapping due to obesity, which the Veteran believes is supported by a March 2014 VA treatment note. The examiner must also consider a private treatment record in April 2011 noting asbestosis and COPD, and an October 2013 CT scan that states biopsy suggests asbestosis. For each respiratory disability identified, is it at least as likely as not (50 percent or greater probability) that the Veteran's respiratory disability is caused by service, to include exposure to asbestos? Why or why not? If the examiner finds that the Veteran has a current diagnosis of air trapping, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's air trapping is due to obesity which is proximately due to or aggravated by his service-connected PTSD, including any medication taken for PTSD. In answering this question, the examiner must specifically address the following: (i) whether the Veteran's service-connected PTSD and related medications caused the Veteran to become obese; (ii) if so, whether the obesity as a result of his service-connected PTSD was a substantial factor in causing the Veteran's air trapping, and; (iii) whether the air trapping would not have occurred but for the obesity caused by his service-connected PTSD. Each opinion offered must be supported by a complete rationale. If the examiner's rationale discusses the Veteran's history of smoking, the examiner must consider the private treatment records from April 2006 to December 2006 finding that the Veteran smoked 0.75 packs per day resulting in 15.75 pack years, a December 2006 notation that he smoked up to three packs per day for 29 years and quit in August of 2006, as well as the November 2011 and October 2013 private treatment notes indicating that the Veteran smoked 2 packs per day for 29 years before quitting at age 50, which would have been in 2006, resulting in 58 pack years. 6. After completing directives one and two, requesting treatment records, schedule the Veteran for a VA examination to obtain an opinion as to the nature and likely etiology of the left ankle disability. Copies of all pertinent records must be made available to the examiner for review. The examiner is asked to provide a response to the following: (a) Identify all diagnosed left ankle disabilities. (b) If no specific left ankle disability is diagnosed, the examiner must consider whether any related pain results in functional impairment of earning capacity. (c) For each diagnosed left ankle disability or identified functional impairment of the left ankle, is it at least as likely as not (50 percent or greater probability) related to service, to include a fall down a ladder discussed in the Veteran's April 2019 hearing testimony and June 1977 STRs noting a sprained ankle and advising light duty? The opinion offered must be supported by a complete rationale. The examiner must discuss the Veteran's April 2019 hearing testimony that his ankle has been tender since the fall in service. 7. After completing directives one and two, requesting treatment records, schedule the Veteran for a VA examination for to determine the nature and likely etiology of the claimed sterility. Copies of all pertinent records must be made available to the examiner for review. If the medical record is not adequate to determine whether the Veteran is sterile, the examiner must perform any testing required to diagnose or rule out sterility. The examiner is asked to provide a response to the following: Is the Veteran's sterility at least as likely as not (50 percent or greater probability) caused by or related to the Veteran's diagnosis of gonococcic urethritis in August 1976, and positive result for gonorrhea in August and September 1976? The opinion offered must be supported by a complete rationale. 8. The AOJ must confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.