Citation Nr: 21069510 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-46 952 DATE: November 18, 2021 REMANDED Entitlement to a rating higher than 10 percent prior to March 26, 2021, and a rating higher than 20 percent thereafter for shell fragment wound injury of the left knee with retained foreign body and degenerative changes (left knee disability), to include whether a separate evaluation is warranted for left knee instability/laxity is remanded. Service connection for acid reflux, to include as due to exposure to herbicides and/or as secondary to service-connected PTSD, is remanded. Service connection for sleep apnea, to include as due to exposure to herbicides and/or as secondary to service-connected PTSD, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 16, 2016 is remanded. REASONS FOR REMAND The veteran had active service from May 1967 to May 1969. The veteran is in receipt of several medals, including a Purple Heart. These matters come before the Board of Veterans' Appeals (BVA or Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in August 2018, at which time the matters were remanded for further development. 1. Entitlement to a separate evaluation for left knee instability/lateral laxity is remanded. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, further development is necessary to afford the veteran an adequate VA examination to assess the severity of his service-connected left knee. Although VA need not provide a medical examination in all cases, "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The issue of entitlement to a separate rating for left knee instability/lateral laxity has been raised by the record per the October 2016 VA examination. The examiner noted the veteran displayed anterior instability (Lachman test) of 1+ (0-5 mm), indicating minimal anterior joint laxity present. The examiner noted this new clinical finding was not indicated on the prior examination. However, in the most recent March 2021 VA examination report, the examiner denied the veteran ever had a history of lateral instability in the left knee; she selected "N/A". This evidence suggests that the examiner did not conduct a proper file review in evaluating the severity of the veteran's service-connected disability. Moreover, the March 2021 VA examination report is incomplete. While the examiner reported the results for anterior instability (Lachman test) and posterior instability (posterior drawer test) were negative, she omitted the results of the medial or lateral instability testing. In July 2021. The agency of original jurisdiction (AOJ) requested the examiner to provide the results of the tests for medial instability (apply valgus pressure to knee in extension and with 30 degrees of flexion) and lateral instability (apply varus pressure to knee in extension and with 30 degrees of flexion), noting that the options were normal, 1+ (0-5mm), 2+ (5-10mm) or 3+ 10-15mm). To date, the examiner has not complied with the AOJ's request. In the uniquely pro-claimant VA disability compensation scheme, a veteran can receive disability compensation for any period of time in which he/she was disabled due to a condition, even if that disability has resolved. For instance, it is possible for the veteran to be awarded compensation for knee instability that occurred while the claim was on appeal. Therefore, it is important for us to decide whether a veteran has had or continues to have knee instability for any portion of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the AOJ should afford the veteran the opportunity to attend a new VA examination to adequately assess the veteran's entire disability picture of his left knee, including the veteran's history of left knee instability. 2. Service connection for acid reflux is remanded. Although a March 2021 VA examination report was obtained on remand, the Board finds that there has not been substantial compliance with the Board's August 2018 remand; further development, in the form of an addendum opinion is necessary. First, the Board cannot make a fully-informed decision on the issue of service connection for acid reflux because no VA examiner has been able to determine whether the veteran's acid reflux is caused by/proximately due to the veteran's exposure to herbicides and/or the medications taken for his service-connected disabilities. Specifically, the March 2021 VA examiner rendered a negative opinion, that it was less likely than not that the veteran's acid reflux was proximately due to the veteran's service connected PTSD or diabetes mellitus, Type 2 (DM II), but did not provide a rationale that specifically addressed the relationship of acid reflux to herbicide agents or the medications the veteran takes for his service-connected disabilities. NievesRodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Indeed, it appears that the medical examiner ignored the appellant's lay assertions that his acid reflux was either directly due to service or was due to the medications taken for his service-connected disabilities, failing to address these theories of entitlement all together without any explanation. The Board notes that the examiner is not required to accept the veteran's theories if it is incongruous with the record; however, the examiner is required to fully explain why she disagreed with the veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion. An examiner must consider all raised theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The medical opinion is essentially bereft of any meaningful discussion of medical history or findings in formulating the negative conclusion reached. Next, the rationale of the opinion was speculative at best. A speculative medical opinion provides neither positive nor negative support for the veteran's claim. Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed.Cir. 2009). Here, the examiner reasoned that due to GERD having multiple etiologies and the veteran having multiple risk factors, she was unable to determine if the veteran's service-connected DM II or service-connected PTSD were the cause of the veteran's GERD. The examiner did not state whether the need to speculate was 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). Therefore, the rationale is of no weight. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Further, "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Lastly, the examiner did not provide any rationale or opinion as to whether the claim for service connection for acid reflux was aggravated by the veteran's exposure to herbicdes, service-connected PTSD, or the medications taken for his service-connected disabilities. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that medical opinion that only addresses whether a service-connected disability caused a nonservice-connected disability does not address whether the service-connected disability aggravated a nonservice-connected disability). Therefore, remand is necessary. Stegall, 11 Vet. App. 268 (1998). 3. Service connection for sleep apnea is remanded. Remand is also necessary for the claim of service connection for sleep apnea to afford the veteran an adequate VA examination to comply with the August 2018 remand directives. Stegall, 11 Vet. App. 268 (1998). As a preliminary matter, the Board cannot make a fully-informed decision on the issue of service connection for sleep apnea because the March 2021 VA examiner did not specify whether or not the veteran has a diagnosis of sleep apnea. In the March 2021 VA examination report, both boxes, the "yes" and "no" boxes, are selected to the question of whether the veteran has ever had sleep apnea. A new VA examination, with a clarifying diagnosis is needed. Next, the VA examiner, in rendering a negative opinion, relied on the absence of objective medical evidence confirming a diagnosis to dismiss the veteran's lay statements of his symptomatology. Specifically, the VA medical opinion (VAMO) provided the veteran had subjective evidence indicating obstructive sleep disorder diagnosis, but unfortunately, did not have any objective evidence such as a sleep study or a diagnosis note from a provider indicating sleep apnea. She noted the veteran denied wanting to have a sleep study done. She noted the veteran had service-connected PTSD and that studies have shown service-connection to PTSD and other mental health conditions caused increased risk for OSA. However, due to the lack of objective evidence of sleep apnea, it was less likely than not caused by the veteran's service-connected PTSD or DM II. In an October 2014 lay statement to support of his claim, the veteran stated that he may have sleep apnea, but had not had a sleep study. He stated he sometimes wakes up gasping for air and has been told by his wife that he snores a lot. He asserted he has trouble going to sleep and staying asleep. The Board notes the veteran is competent to report his experiences, injuries, and treatment. See Layno v. Brown, 6 Vet. App. 465 (1994). The examiner is not required to accept the veteran's theories if it is incongruous with the record; however, the examiner is required to fully explain why she disagreed with the veteran's condition or theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion. Plainly, the rationale appears to contradict the conclusion reached. Finally, the examiner did not render an opinion as to whether the veteran's sleep apnea was aggravated by his service-connected PTSD or medication taken for his service-connected disabilities, which was specifically requested in the board's August 2018 remand directives. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that medical opinion that only addresses whether a service-connected disability caused a nonservice-connected disability does not address whether the service-connected disability aggravated a nonservice-connected disability). The Board notes a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Further, "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). On remand, the AOJ must afford the veteran an opportunity to attend a new VA examination to clarify the diagnosis of sleep apnea and for an adequate medical opinion to address the etiology of the condition. Stegall, 11 Vet. App. 268 (1998). Entitlement to a TDIU prior to August 16, 2016 is remanded. The Board finds the veteran's claim for a TDIU, prior to August 16, 2016, is inextricably intertwined with the claims for service connection for acid reflux and service connection for sleep apnea. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claims. The matters are REMANDED for the following action: 1. Obtain the veteran's VA treatment records for the period from July 2021 to the Present. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the veteran's acid reflux (other than the examiner who conducted the March 2021 examination). The examiner should opine as to the following: 3. Is it as at least as likely as not (i.e., 50 percent or greater probability) the veteran's acid reflux is caused by or etiologically directly due to service, to include exposure to herbicides? 4. Is it as at least as likely as not (i.e., 50 percent or greater probability) the veteran's acid reflux is proximately due to (caused by) his service-connected PTSD? 5. Is it as at least as likely as not (i.e., 50 percent or greater probability) the veteran's acid reflux is proximately due to (caused by) the medications taken for his service-connected disabilities? 6. Is it as at least as likely as not (i.e., 50 percent or greater probability) the veteran's acid reflux is aggravated by (increase in severity beyond natural progress) his service-connected PTSD? 7. Is it as at least as likely as not (i.e., 50 percent or greater probability) the veteran's acid reflux is aggravated by (increase in severity beyond natural progress) the medications taken for his service-connected disabilities? *The examiner is advised that the Board is cognizant that there is no VA presumption of service connection for acid reflux as due to herbicide exposure. The question here is what is the likelihood that this veteran's acid reflux is related to his herbicide exposure given his medical history, family history, other risk factors, etc. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 8. Afford the veteran a VA examination for his claimed sleep apnea with an appropriate clinician (other than the examiner who conducted the March 2021 examination). All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. 9. The examiner should note whether the veteran has a diagnosis of sleep apnea. 10. If the veteran has a diagnosed disorder, the examiner should render an opinion as to the following: I. Is it as at least as likely as not (i.e., 50 percent or greater probability) the veteran's sleep apnea is caused by or etiologically directly due to service, to include exposure to herbicides? II. Is it as at least as likely as not (i.e., 50 percent or greater probability) the veteran's sleep apnea is proximately due to (caused by) his service-connected PTSD? III. Is it as at least as likely as not (i.e., 50 percent or greater probability) the veteran's sleep apnea is proximately due to (caused by) the medications taken for his service-connected disabilities? IV. Is it as at least as likely as not (i.e., 50 percent or greater probability) the veteran's sleep apnea is aggravated by (increase in severity beyond natural progress) his service-connected PTSD? V. Is it as at least as likely as not (i.e., 50 percent or greater probability) the veteran's sleep apnea is aggravated by (increase in severity beyond natural progress) the medications taken for his service-connected disabilities? *The examiner is advised that the Board is cognizant that there is no VA presumption of service connection for sleep apnea as due to herbicide exposure. The question here is what is the likelihood that this veteran's sleep apnea is related to his herbicide exposure given his medical history, family history, other risk factors, etc. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 11. Afford the veteran a VA examination to determine the current severity of his left knee disability. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the veteran's current complaint, as well as findings as to the nature, extent, and severity of symptoms caused by the veteran's disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the knees and the degree at which pain begins. As for knee instability, the examiner must note the veteran's history of knee instability and conduct all appropriate testing and provide said results to determine if the veteran continues to have minimal knee instability. The examiner must report on all instability tests per the examination report form. The examiner should take into consideration the October 2016 VA examination clinical findings that show the veteran had minimal knee instability on exam. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pendleton, N. 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.