Citation Nr: 21069407 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-31 614 DATE: November 18, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for degenerative disease of the lumbosacral spine status post lumbar laminectomy (claimed as chronic low back pain, lumbar spinal stenosis, spondylolisthesis, degenerative disc disease L3-5) is remanded. Entitlement to service connection for right lower extremity neurogenic claudication radiculopathy is remanded. Entitlement to service connection for left lower extremity neurogenic claudication radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to February 1971. He received the Purple Heart for his service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) with regard to the obstructive sleep apnea and peripheral neuropathy claims, and an April 2017 rating decision with regard to the remaining claims. This case was most recently before the Board in November 2020, at which time it was remanded for further development, as discussed below. The Board finds that the remand directives were not substantially complied with and thus another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for obstructive sleep apnea is remanded. A November 2020 Board decision found the August 2018 VA examination to be incomplete as the examiner did not provide a clear opinion nor a sufficient rationale regarding whether the Veteran's obstructive sleep apnea was incurred during his period of active service. Additionally, the examiner did not adequately consider the Veteran's history of sleep disturbance symptoms. The Board remanded the claim of service connection for obstructive sleep apnea and directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion to determine the nature and etiology of the condition. The clinician was directed to provide opinions as to whether the Veteran's obstructive sleep apnea is related to his period of active service, as well as whether the condition was caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). The clinician was specifically directed to address the history of symptoms of sleep disturbances provided by the Veteran. 11/25/2020, BVA Decision. A July 2021 VA examination noted a diagnosis of obstructive sleep apnea. The examiner opined that the Veteran's obstructive sleep apnea is less likely than not related to his period of active service. The examiner indicated that the November 2020 Remand directives were not available for review. The rationale was largely based on the lack of contemporaneous treatment records regarding sleep apnea, but the examiner also indicated that the service treatment records were unavailable for review. The examiner did not clearly indicate whether the history of symptoms of sleep disturbances provided by the Veteran were considered in reaching the medical opinion. The examiner also opined that the Veteran's obstructive sleep apnea is less likely than not aggravated by his service-connected PTSD. The rationale was based on a study indicating that the sleep apnea may worsen PTSD, but not vice versa. Again, the examiner indicated that the Remand directives and service treatment records were unavailable for review. 07/07/2021, C&P Exam; 07/07/2021, C&P Exam (medical opinion); 07/07/2021, C&P Exam (medical opinion). In a separate August 2021 medical opinion, the same VA examiner opined that the Veteran's obstructive sleep apnea is less likely than not caused by his service-connected PTSD. The examiner did review the Remand directives and tacitly acknowledged the history of symptoms of sleep disturbances provided by the Veteran. The rationale was lack of treatment records regarding sleep apnea until the diagnosis in 2011. However, the examiner did not specifically consider reports from the Veteran and his spouse that the onset of his sleep disturbance symptoms occurred during or immediately after separation from service. 08/10/2021, C&P Exam; see also 11/23/2011, VA 21-4138 (history of symptoms of sleep disturbances). The Veteran's attorney representative requested a remand in light of the Veteran's service treatment records being unavailable. 10/26/21 Agent Fee Agreement. The Board finds that the July 2021 VA examination and August 2021 medical opinion do not provide a clear opinion nor a sufficient rationale regarding whether the Veteran's obstructive sleep apnea was incurred during his period of active service. Specifically, the examiner did not adequately consider the Veteran's history of sleep disturbance symptoms as requested in the November 2020 Remand. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. Specifically, the VA examination did not provide a clear opinion nor a sufficient rationale regarding whether Veteran's obstructive sleep apnea was incurred during his period of active service. Accordingly, the Board finds the July 2021 VA examination and August 2021 medical opinion to be incomplete. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as a result of exposure to herbicide agents, is remanded. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as a result of exposure to herbicide agents, is remanded. A November 2020 Board decision found the August 2018 VA examination to be incomplete as the examiner did not provide a sufficient rationale regarding whether the Veteran's peripheral neuropathy conditions were incurred during his period of active service, to include as a result of exposure to herbicide agents. Additionally, the examiner did not specifically consider the Veteran's statements indicating that he has been experiencing numbness in his hands and feet for more than 30 years. The Board remanded the claims of service connection for peripheral neuropathy of the upper and lower extremities and directed the AOJ to obtain an addendum opinion to determine the nature and etiology of the conditions. The clinician was directed to provide an opinion as to whether the Veteran's current peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities was incurred in service, to include as a result of exposure to herbicide agents. The clinician was specifically directed to obtain a more detailed history from the Veteran and address whether those statements, and those provided at the 2017 hearing reflect that peripheral neuropathy was present within the first year after separation from service. Additionally, the examiner is to address the statement provided by the Veteran's personal physician and the opinion offered by previous VA examination in 2014. 11/25/2020, BVA Decision. A July 2021 VA examination noted diagnoses of peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. The examiner opined that the Veteran's peripheral neuropathy conditions were less likely than not related to his period of active service. The examiner indicated that the November 2020 Remand directives were not available for review. The rationale was largely based on the lack of contemporaneous treatment records regarding sleep apnea, but the examiner also indicated that the service treatment records were unavailable for review. The examiner did not obtain a more detailed history from the Veteran, nor did the examiner consider statements provided at the 2017 hearing or statements from the Veteran's personal physician. 07/07/2021, C&P Exam; 07/07/2021, C&P Exam (medical opinion). The Board finds that the July 2021 VA examination does not provide a sufficient rationale regarding whether the Veteran's peripheral neuropathy conditions were incurred during his period of active service, to include as a result of exposure to herbicide agents. Specifically, the examiner did not specifically consider the Veteran's statements regarding the history of the condition. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. Specifically, the VA examination did not provide a sufficient rationale regarding whether Veteran's obstructive peripheral neuropathy conditions were incurred during his period of active service, to include as a result of exposure to herbicide agents. Accordingly, the Board finds the July 2021 VA examination to be incomplete. 4. Entitlement to service connection for degenerative disease of the lumbosacral spine status post lumbar laminectomy (claimed as chronic low back pain, lumbar spinal stenosis, spondylolisthesis, degenerative disc disease L3-5) is remanded. A November 2020 Board decision found the March 2017 VA examination and February 2018 VA medical opinion to be incomplete as they did not sufficiently consider the Veteran's contentions regarding his medical history and symptoms. Additionally, the VA examiner did not sufficiently consider October 2017 private medical opinion and private treatment records beyond mere acknowledgement. The Board remanded the claim of service connection for degenerative disease of the lumbosacral spine status post lumbar laminectomy and directed the AOJ to schedule the Veteran for a VA examination to determine the nature and etiology of the condition. The examiner was directed to provide an opinion as to whether the Veteran's current degenerative joint disease of the lumbosacral spine was caused by a disease or injury in active service. The examiner was specifically directed obtain a more detailed history from the Veteran and address the history of symptoms of low back pain provided by the Veteran, to include his post-service work included 30 years as an agent at a motor company with no lifting or carrying of heavy items. The examiner was also directed to address the statement provided by the Veteran's personal physician and the opinion offered by previous VA examinations. 11/25/2020, BVA Decision. A July 2021 VA examination noted diagnoses of degenerative disc disease, spinal fusion, and lumbar radiculopathy. The examiner opined that the Veteran's low back conditions were less likely than not related to his period of active service. The examiner indicated that the November 2020 Remand directives were not available for review. The rationale was largely based on the lack of contemporaneous treatment records regarding sleep apnea, but the examiner also indicated that the service treatment records were unavailable for review. The examiner did not obtain a more detailed history from the Veteran, nor did the examiner consider statements regarding the Veteran's post-service work. Likewise, the examiner did not indicate whether the statement provided by the Veteran's personal physician was considered in reaching the medical opinion. 07/07/2021, C&P Exam; 07/07/2021, C&P Exam (medical opinion). The Veteran's attorney representative also point out this point. 10/26/2021 Agent Fee Agreement, at 3. The Board finds that the July 2021 VA examination does not provide a sufficient rationale regarding whether the Veteran's low back conditions were caused by a disease or injury in active service. Specifically, the examiner did not specifically consider the Veteran's statements regarding the history of the condition and his post-service work history. And, the examiner did not consider statement from the Veteran's personal physician. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. Specifically, the VA examination did not provide a sufficient rationale regarding whether Veteran's low back conditions were caused by a disease or injury in active service. Accordingly, the Board finds the July 2021 VA examination to be incomplete. 5. Entitlement to service connection for right lower extremity neurogenic claudication radiculopathy is remanded. 6. Entitlement to service connection for left lower extremity neurogenic claudication radiculopathy is remanded. A November 2020 Board decision found the March 2017 VA examination and February 2018 VA medical opinion to be incomplete as they did not sufficiently consider the Veteran's medical history, to include private treatment records showing diagnoses of radiculopathy in April 2015 and January 2016. The Board remanded the claim of service connection for bilateral lower extremity neurogenic claudication radiculopathy and directed the AOJ to schedule the Veteran for a VA examination to determine the nature and etiology of the conditions. The examiner was directed to provide opinions as to whether the Veteran's bilateral lower extremity neurogenic claudication radiculopathy is related to his period of active service, as well as whether the condition was caused or aggravated by his low back condition. 11/25/2020, BVA Decision. A July 2021 VA examination noted diagnoses of bilateral lower extremity radiculopathy. The examiner opined that the Veteran's bilateral lower extremity radiculopathy is less likely than not related to his period of active service. The examiner indicated that the November 2020 Remand directives were not available for review. The rationale was largely based on the lack of contemporaneous treatment records regarding sleep apnea, but the examiner also indicated that the service treatment records were unavailable for review. The examiner also opined that the Veteran's bilateral lower extremity radiculopathy is less likely than not caused or aggravated by his low back condition. However, the rationale was largely based on the unavailability of service treatment records showing an in-service low back injury. The examiner did acknowledge that there was evidence that the Veteran underwent a back surgery, as well as clinical findings consistent with radiculopathy. However, the examiner did not specifically provide an opinion supported by any rationale as to whether the Veteran's bilateral lower extremity radiculopathy was caused or aggravated by his low back condition. 07/07/2021, C&P Exam; 07/07/2021, C&P Exam (medical opinion); 07/07/2021, C&P Exam (medical opinion). The Board finds that the July 2021 VA examination does not provide a sufficient rationale regarding whether the Veteran's bilateral lower extremity radiculopathy was caused or aggravated by his low back condition. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive #1, obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of obstructive sleep apnea. An in-person examination is not required unless deemed necessary by the clinician. The clinician is to review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (probability of 50 percent or greater) that his current obstructive sleep apnea was incurred in service; and (b.) Whether it is at least as likely as not (probability of 50 percent or greater) that his current obstructive sleep apnea was (1) caused or (2) aggravated by his service-connected PTSD. **The examiner is to address the history of symptoms of sleep disturbances provided by the Veteran. See 11/23/2011, VA 21-4138.** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing directive #1, obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. An in-person examination is not required unless deemed necessary by the clinician. The clinician is to review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (probability of 50 percent or greater) that his current peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities was incurred in service, to include as a result of exposure to herbicide agents. **The examiner is to specifically obtain a more detailed history from the Veteran. Address whether those statements, and those provided at the 2017 hearing reflect that peripheral neuropathy was present within the first year after separation from service. See 01/26/2017, Hearing Transcript, pages 8-9. Additionally, the examiner is to address the statement provided by the Veteran's personal physician and the opinion offered by previous VA examination in 2014. See 07/08/2014, Third Party Correspondence; 04/29/2014 CAPRI.** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing directive #1, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of degenerative joint disease of the lumbosacral spine. The examiner is to review the virtual file, including a copy of this Remand, to become familiar with the pertinent medical history of the Veteran. The examiner is to address the following: (a.) Whether it is at least as likely as not (probability of 50 percent or greater) that his current degenerative joint disease of the lumbosacral spine was caused by a disease or injury in active service. **The examiner is asked to specifically obtain a more detailed history from the Veteran and address the history of symptoms of low back pain provided by the Veteran. See 05/31/2018, Form 9 (noting that his post-service work included 30 years as an agent at a motor company with no lifting or carrying of heavy items). The examiner is also to address the statement provided by the Veteran's personal physician and the opinion offered by previous VA examinations. See 10/26/2017, Medical Treatment Record Non-Government Facility; 04/03/2017 C&P Exam; 02/02/2018 C&P Exam.** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After completing directive #1, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his currently diagnosed bilateral lower extremity neurogenic claudication radiculopathy. The examiner is to review the virtual file, including a copy of this Remand, to become familiar with the pertinent medical history of the Veteran. Additionally, the examiner must consider prior diagnoses of radiculopathy. See, e.g., 01/26/2017, Medical Treatment Record Non-Government Facility, page 2. The examiner is to address the following: (a.) Whether it is at least as likely as not (probability of 50 percent or greater) that his current bilateral lower extremity neurogenic claudication radiculopathy was caused by a disease or injury in active service; and (b.) Whether it is at least as likely as not (probability of 50 percent or greater) that his current bilateral lower extremity neurogenic claudication radiculopathy was (1) caused OR (2) aggravated by his degenerative joint disease of the lumbosacral spine and/or any service-connected disabilities. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.