Citation Nr: 21066762 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 19-07 898 DATE: November 2, 2021 REMANDED Entitlement to a rating in excess of 10 percent for torticollis is remanded. Entitlement to a rating in excess of 10 percent for left knee osteochondritis dissecans is remanded. Entitlement to service connection for acid reflux (gastroesophageal reflux disease) is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U. S. Army from March 2005 to July 2006 with service in Afghanistan and from January 2010 to February 2011 with service in Southwest Asia, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a Board hearing in April 2021 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to a rating in excess of 10 percent for torticollis 2. Entitlement to a rating in excess of 10 percent for left knee osteochondritis dissecans 3. Entitlement to service connection for acid reflux (gastroesophageal reflux disease) 4. Entitlement to service connection for sleep apnea The Veteran contends that he is entitled to higher ratings for his neck and left knee disabilities, as well as service connection for gastroesophageal reflux disease (GERD) and sleep apnea. As an initial matter, during the April 2021 Board hearing, the Veteran reported undergoing several comprehensive physicals throughout his Army National Guard service. However, a review of the claims file does not find that his complete service treatment records have been obtained. The outstanding Army National Guard records should be associated with the claims file prior to adjudication. VA treatment records also suggest that there are relevant outstanding private treatment records. See January 2021 VA treatment. The Veteran reported seeing a private chiropractor for his spine. An attempt to associate those records, as well as any other relevant private treatment should be made on remand. The Veteran attended a VA examination in August 2016. Following an examination and review of the claims file, the examiner determined that the Veteran's GERD and sleep apnea were less likely than not related to active duty because the service treatment records failed to reflect any complaints of or treatment for either condition and the Veteran explicitly denied experiencing fatigue, problems sleeping, vomiting, diarrhea, and frequent heartburn or indigestion on his December 2010 post-deployment survey. It does not appear that the examiner considered the Veteran's lay statements. Furthermore, following the VA examination, the Veteran's spouse and fellow service members submitted correspondence regarding potentially witnessing manifestations of these conditions in service. These statements have not been considered by a VA examiner. The Veteran's most recent VA examination for his knees occurred in October 2019. He denied taking any medication to treat his knee pain and his range of motion testing was all normal. He denied the use of any assistive devices and no instability was found. Since that time, the Veteran has reported experiencing a "giving way" sensation and needing to use a knee brace. See March 2020 correspondence and April 2021 Board hearing transcript. Because there is evidence that the Veteran's knee disability may have increased in severity, a new examination in warranted. The Veteran submitted a private consultant's opinion in December 2019 dated in September 2019. The consultant determined that the Veteran's sleep apnea more likely than not began during active duty. In his rationale, the consultant mentioned that the Veteran's service-connected PTSD symptoms began at the same time as his sleeping problems. It is not clear from the consultation report if the Veteran's sleep problems in 2010 were related to his PTSD or if they were manifestations of sleep apnea. Furthermore, the consultant did not comment on the Veteran's explicit denial of any sleep issues at his discharge. Accordingly, an additional opinion is necessary. The Veteran submitted another private opinion in February 2020 dated in January 2020. The consultant stated that the Veteran had pain with motion in his neck. The consultant determined that the Veteran was entitled to a 20 percent rating for his neck disability but did not provide range of motion results. He also noted that the Veteran's Torticollis was not present during the examination, so it is not clear if the painful motion was due to the Veteran's service-connected disability or another condition. The private consultant also explained that the Veteran' experienced heartburn while on active duty and attributed it partly to stress. Therefore, it is not clear if the heartburn is a symptom of his service-connected PTSD or a separate and distinct condition due to his active service. Accordingly, additional opinions are necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service treatment records, to include documents pertaining to his service in the Florida National Guard through 2020. Document all requests for information as well as all responses in the claims file. 2. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private providers, to include his private chiropractor, and associate them with the claims file. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee osteochondritis dissecans. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected torticollis. The examiner is asked to determine if any pain or other symptoms in the Veteran's neck are due to his torticollis or another disability. The examiner should provide a full description of the torticollis and report all signs and symptoms necessary for evaluating the Veteran's torticollis disability under the rating criteria. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for a VA examination for his sleep apnea. The examiner must review the claims file. The examiner is asked to opine whether the Veteran's sleep apnea at least as likely as not related to service, including his reported in-service snoring and sleep difficulties. Review of the entire claims file is required, and the examiner is asked to specifically comment on the December 2019 (dated in September 2019) consultation opinion and lay contentions. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Schedule the Veteran for a VA examination for his gastroesophageal reflux disease. The examiner must review the claims file. The examiner is asked to opine whether the Veteran's gastroesophageal reflux disease at least as likely as not related to service, including his reported in-service vomiting and reflux. Review of the entire claims file is required, and the examiner is asked to specifically comment on the February 2020 consultation opinion and lay contentions. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.