Citation Nr: 21067726 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 18-05 464 DATE: November 5, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an eye disability, to include Leber's optic atrophy, is remanded. Entitlement to service connection for a psychiatric disability, include posttraumatic stress disorder (PTSD), is remanded. Entitlement to an initial disability rating in excess of 20 percent for residuals, labral tear to include SLAP, left shoulder, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from December 1986 to March 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal of August 2015 and March 2016 rating decisions. In April 2019, the Board denied the claims of entitlement to service connection for a low back disability and for entitlement to service connection for sleep apnea. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a February 2020 Joint Motion for Remand, vacated the April 2019 Board decision related to those issues, and remanded the issues to the Board for readjudication. In December 2020, the Board denied the Veteran's claim for a higher rating for his left shoulder disability and remanded the issues of entitlement to service connection for sleep apnea, a low back disability, eye disability, psychiatric disability, tinnitus and TDIU for further development. The Veteran appealed the Board's denial of an increased rating for his left shoulder disability to the Court and the Court granted a September 2021 Joint Motion for Partial Remand (JMPR), vacated the December 2020 Board decision related to that issue, and remanded the issue consistent with the JMPR. The issues of entitlement to service connection for sleep apnea, low back disability, eye disability, psychiatric disability, and entitlement to a TDIU have also been returned to the Board by the Regional Office (RO) for further appellate review. An August 2021 rating decision granted service connection for tinnitus. Thus, this issue is no longer before the Board. 1. Entitlement to service connection for sleep apnea is remanded. In an August 2021 VA medical examination, the examiner diagnosed the Veteran with obstructive sleep apnea, which was confirmed by a July 2021 sleep study. The examiner determined that that the Veteran's sleep apnea was not related to his service. However, the Board finds that the examiner's rationale is inadequate. The examiner noted that there was a strong correlation between military service and sleep apnea through multiple studies, however, a causation between service and sleep apnea has not been definitely established. The examiner used an incorrect evidentiary standard in arriving at the opinion. Moreover, in a September 2021 statement, the Veteran reported that the medication that he takes for his service-connected hypertension causes him to have poor sleep. In addition, he reports difficulty sleeping at night due to the buzzing in his ear from his service-connected tinnitus. Accordingly, further VA examination is warranted that addresses the Veteran's contentions on direct and secondary incurrence basis. 2. Entitlement to service connection for a low back disability is remanded. The Veteran reports that he injured his back during active service and that his injury has become progressively worse since his active service. His service treatment records contain complaints of low back pain. In an April 2021 examination report, the examiner determined that the Veteran's current diagnosis of bulging disc in his lumbar spine was not due to his service injury but was rather due to age related wear and tear. In providing this opinion, the examiner noted that factors that could increase the risk of a herniated disk include having a physically demanding job such as repetitive lifting, pulling, or pushing. Significantly, the examiner's opinion does not address the Veteran's contentions of the onset of his back problems in service due to physical demands that have increased in severity over the years. Accordingly, further VA opinion is warranted. 3. Entitlement to service connection for an eye disability, to include Leber's optic atrophy, is remanded. In a June 2021 VA examination report, the examiner noted that the Veteran had other eye conditions (in addition to Leber's optic atrophy), that included cataracts, glaucoma and macular degeneration, that were not the result of active duty or injury but the result of the natural aging process. The examiner did not provide a further discussion as to why the conditions were not the result of active duty. The Board finds that the VA examiner's opinion is inadequate as it is not supported with sufficient rationale. A remand is warranted for further VA opinion. 4. Entitlement to service connection for a psychiatric disability, to include PTSD, is remanded. The Veteran reports the onset of depression (claimed as PTSD) during his time in active service. He reports that his trauma began when he was initially stationed in Fairbanks, Alaska. See November 2020 statement. He reports that he currently takes medicine daily for anxiety and depression. The Veteran also contends that a psychiatric disability is secondary to his service-connected disabilities. The record does not contain sufficient information to make a decision on this claim. The Veteran has not been afforded a current VA examination to determine the nature of his claimed psychiatric disability and to obtain an opinion as to whether any such disability is related to service or a service-connected disability. 5. Entitlement to an initial disability rating in excess of 20 percent for residuals, labral tear to include SLAP, left shoulder, is remanded. The parties to the September 2021 JMPR indicated that a February 2020 VA examination report was inadequate for rating purposes and that a new VA examination of the left shoulder is warranted to comply with Mitchell v. Shinseki, 22 Vet. App. 31, 44 (2011). Moreover, the Court noted that that joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). A remand for a new VA examination is therefore warranted that complies with Mitchell and Correia. 6. Entitlement to TDIU is remanded. With regard to entitlement to a TDIU, there is evidence that the Veteran's service-connected disabilities have significantly impacted his employability. Specifically, the Veteran has reported that his medical conditions have prohibited his ability to work on a full-time basis. See October 2021 statement. Thus, the Veteran's statement raises the question of whether his part-time employment represents marginal employment. The Veteran has not submitted a formal TDIU application, VA Form 21-8940, which would contain important information regarding employment and education history. The Veteran should be given another opportunity to submit this form. The Veteran is advised that while submission of this form is not mandatory for the Board or VA to be able to adjudicate his claim, the information from this form is essential for a proper determination. The Veteran is advised that a failure to furnish this formal application may result in a decision made on a less than full record or in the denial of his claim. Moreover, as the Board is remanding the Veteran's claim for an increased rating for his left shoulder and his claims for service connection for sleep apnea, a back disability, eye disability and a psychiatric disability for further development, this issue should again be adjudicated by the RO. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to address the nature and etiology of the Veteran's diagnosed sleep apnea. The examiner must review the claim file. The examiner must specify in the report that these records have been reviewed. The examiner should then address: (a) Whether it was at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had its onset during, or was otherwise related to any disease or injury in the claimant's service? (b) Whether it was at least as likely as not that sleep apnea (i) was caused or (ii) was aggravated (worsened beyond the natural progression) by the Veteran's service-connected disabilities, which include tinnitus and medication taken for treatment of hypertension. 2. Forward the Veteran's claims file to an appropriate examiner for a records review and request that he or she provide an opinion with respect to the etiology of the Veteran's low back disability. An examination should only be ordered and performed if deemed necessary by the reviewing examiner prior to offering the below requested opinion. The examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's low back disability is related to military service, to include service treatment records documenting low back pain and the Veteran's reports of ongoing low back pain since service discharge. A complete rationale must be provided for the opinion rendered. 3. Forward the claims file to an appropriate examiner for a medical opinion regarding the nature and etiology of the Veteran's eye disability, other than Leber's optic atrophy, to include cataracts, glaucoma and macular degeneration. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After reviewing the claims file, the reviewing examiner should provide an opinion on the following question: Is it at least as likely as not that any diagnosed bilateral eye disability, other than Leber's optic atrophy, to include cataracts, glaucoma and macular degeneration, is etiologically related to service. A complete rationale must be provided for the opinion rendered. 4. Schedule the Veteran for a psychiatric examination to obtain a medical opinion as to the nature and etiology of any acquired psychiatric disability, to include PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met. The examiner must answer the following questions: a) is it as likely as not (a 50 percent probability or more) that a psychiatric disability had onset in, or is otherwise related to, active service. b) is it as likely as not (a 50 percent probability or more) that a psychiatric disability was caused by a service-connected disability. c) is it as likely as not (a 50 percent probability or more) that a psychiatric disability is aggravated by a service-connected disability. 5. Schedule the Veteran for a VA examination to evaluate the current severity of the service-connected left shoulder disability. All indicated tests and studies should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. The examination should be conducted in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and non-weight-bearing. 6. Provide the Veteran another opportunity to submit a formal TDIU application form (VA Form 21-8940). Conduct any necessary development should the Veteran submit a formal application. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.