Citation Nr: 21070575 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-07 395 DATE: November 24, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1970 to May 1972 and from August 1973 to August 1976. This appeal stems from August 2013 and October 2014 rating decisions. In February 2019, the Board remanded the claims for further development, to include providing the Veteran with new VA examinations for the claims on appeal. On review, the Board finds that there was no substantial compliance with the February 2019 remand Directives. See Stegall v. West, 11 Vet. App. 268 (1998). A remand is necessary to provide the Veteran with new VA examinations for the claimed sleep apnea and right shoulder, and to obtain addendum medical opinions regarding the claimed headaches and acquired psychiatric disorder. Sleep Apnea The Board remanded the claim to determine whether the Veteran had a diagnosis of sleep apnea. Specifically, while the Veteran reported that he was diagnosed with sleep apnea in the 1980s and that he was using a CPAP machine, these treatment records were not associated with the claims file, and the Veteran failed to respond to any requests for these records. Although the Veteran failed to respond to the RO's request regarding these records, an August 2021 examiner concluded that the Veteran does not have a diagnosis of sleep apnea but within the same examination report again noted that he is using a CPAP machine. A sleep study was not ordered. Accordingly, a new examination that will include all necessary studies, to include a sleep study is necessary prior to deciding the claim on the merits. Headache Disability The Board remanded the claim after an August 2014 VA examiner relied solely on the lack of documented medical evidence of complaints of headaches until a formal diagnosis of the disability many years after separation from service. The August 2021 examiner acknowledged the Veteran's reports that his headaches began after falling back in a ravine during service but again provided a negative opinion because "No evidence, no treatment records support any history of migraines in the service or private records." In other words, this examiner again ignored the lay assertions in this case and solely relied on the lack of documented medical evidence. Accordingly, an addendum opinion is necessary prior to deciding the claim on the merits. An Acquired Psychiatric Disorder During a November 2020 examination, the examiner rendered diagnoses of unspecified anxiety disorder and unspecified depressive disorder. The examiner opined that the diagnosed disorders were less likely than not related to service. The examiner reasoned that during the evaluation, the Veteran identified the onset of symptoms as occurring after his military service. His military service treatment records were silent for any mental health treatment or condition. His treatment records after the military service indicate the presence of a mental health condition and treatment. Nevertheless, the examiner failed to explain how the fact that the onset of symptoms was after service is relevant to the question of whether the current diagnoses resulted from the identified stressor. In this regard, during the examination, the examiner noted, "He endorsed experiencing a stressful event. He explained, "I got hurt. I fell in a ravine..." However, the examiner did not even consider whether this event could have been cause of the current psychiatric disorder. In other words, while the examiner agreed that the Veteran endorsed experiencing a stressful event, the examiner failed to even consider this event as the cause of the current disability simply because the onset of symptoms occurred after service. Right Shoulder Service treatment records include an October 1970 enlistment examination, in which the Veteran denotes on a Report of Medical History a broken right arm. Also, within the October 1970 enlistment examination, the Report of Medical Examination shows the Veteran had a normal upper extremities clinical evaluation. A July 1973 Report of Medical History shows the Veteran reported right arm break at the shoulder level seven years prior. A June 1975 treatment note shows that the Veteran complained of right shoulder pain and was diagnosed with a muscle strain. As noted by the Board in its 2019 remand, a right shoulder disability was not noted upon entry to service. As such, the Board found that there must be clear and unmistakable evidence that the right shoulder disability preexisted service. Nevertheless, the 2021 examiner simply noted "There [are] records that support right shoulder disability started prior to military, there are not records to support a in service event or injury." Not only did the examiner used the wrong standard of proof, but the examiner also failed to acknowledge the in-service diagnosis of a muscle strain and complaints of shoulder problems since a fall sustained in service. Accordingly, the Board finds that a new examination is necessary prior to deciding the claim on the merits. The matters are REMANDED for the following actions: 1. Provide the Veteran with a VA examination to help determine whether he has a current diagnosis of sleep apnea. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. Specifically, ensure that all necessary studies, including a sleep study are obtained. Thereafter, if a diagnosis of sleep apnea is confirmed, the examiner is asked to respond to the following: Provide an opinion whether it is at least as likely as not (a 50 percent probability or higher) that the diagnosed sleep apnea had its onset during service or is otherwise related to it. A complete rationale should be provided for all opinions. 2. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the claimed headache disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: Provide an opinion as to whether it is at least as likely as not (a 50 percent probability or higher) that the currently diagnosed headache disability had its onset during service or is otherwise related to it. In doing so, specifically address the Veteran's competent reports of headaches since sustaining a fall in service. Please note: lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. A complete rationale should be provided for all opinions. 3. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the claimed acquired psychiatric disorder. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: Provide an opinion as to whether it is at least as likely as not (a 50 percent probability or higher) that the currently diagnosed psychiatric disorders are related to the stressful event reported by the Veteran and acknowledged by the November 2020 examiner. A complete rationale should be provided for all opinions. 4. Provide the Veteran with a VA examination to help determine the likely etiology of the claimed right shoulder disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed right shoulder disabilities. (b) Elicit from the Veteran all signs and symptoms of the right shoulder disability prior to, during, and subsequent to service. (c) Whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that the Veteran's right shoulder disability pre-existed his military service. In doing so, the examiner must consider the normal upper extremity enlistment examination that did not note any right shoulder disability. (d) If it is determined that the Veteran's right shoulder disability clearly and unmistakably pre-existed his military service, determine whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that any such pre-existing right shoulder disability was NOT aggravated in service. In doing so, address the Veteran's lay assertions as well as the documented treatment for right shoulder strain during service. (e) If it is found that there is clear and unmistakable evidence that the Veteran's right shoulder disability existed prior to service AND that there is clear and unmistakable evidence that the condition was NOT aggravated by service, the examiner should clearly indicate the clear and unmistakable evidence supporting his/her conclusions. (f) If, however, it is determined that there is no clear and unmistakable evidence establishing that the Veteran's right shoulder disability pre-existed military service or that the pre-existing condition was NOT aggravated in service, the examiner must take as conclusive fact that the Veteran was sound on entrance into the military. If that is the conclusion reached, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or higher) that any currently diagnosed right shoulder disability had its onset during service or is otherwise related to it. A complete rationale should be provided for all opinions. 5. Thereafter, readjudicate the remanded claims. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.