Citation Nr: 21070884 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-42 950 DATE: November 26, 2021 REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. REASONS FOR REMAND The Veterans served in active-duty service with the Army from April 1985 to April 1989 to include Reserve service. This matter is on appeal from an October 2016 rating decision. In an April 2020 Board decision, the Board denied entitlement to service connection for a sleep disorder; cervical spine disability; back disability; right ankle disability; right hip disability; left hip disability; a right foot disability; and a left foot disability. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in June 2021, issued a decision to vacate and remand the issue back to the Board for re-adjudication. The Board also notes that the April 2020 Board decision also denied entitlement to a left shoulder disability; bilateral hearing loss; and an acquired psychiatric disorder. The June 2021 Court decision noted that the Veteran reported that he no longer intended to pursue his appeal of the Board's denial of these issues; as such, the Court dismissed the appeal regarding these claims. See Pederson v. McDonald, 27 Vet. App. 276, 283 (2015) (en banc). The Board finds that remand is warranted for additional development. Regarding the Veteran's claimed sleep disorder, the June 2021 Court decision found that the April 2020 Board decision failed to determine if VA met its duty to assist. The Court noted that the Veteran's medical record indicated that he underwent a private sleep study, but the results of the private sleep study were not in the Veteran's VA file. Review of the medical treatment record shows in a February 2017 VA psychiatric visit, the Veterans noted to have brough a copy of a "non-VA" sleep study that showed a diagnosis for obstructive sleep apnea (OSA). Followup February 2017 records first noted that the "provider notes no evidence of study uploaded...need this to request equipment for treatment" and then a subsequent record provided a partial extract of the official performed by Puerto Rico Sleep Center and that it was available in the Vista Image Display. Review of the record does not show that the full copy of the February 2017 private sleep study has been associated with the claims record; as such, remand is warranted to ensure a complete copy of the Veteran's medical treatment record and test results have been associated with the claims record. Regarding the Veteran's claimed cervical spine disability; back disability; right ankle disability; right hip disability; left hip disability; a right foot disability; and a left foot disability; review of the record shows a March 2016 private provider report where the provider noted the Veteran reported suffering body trauma to the shoulder, right hand and knees during active-duty service. The provider also found the Veteran with reported symptoms of pain and stiffness in the cervical spine and low back that would also radiate to the hips, knees and ankles. The Veteran reported that these symptoms made him unable to lift heavy weights or perform routine duties. The Veteran also reported fatigue, snoring, sluggishness and daytime somnolence. The Board notes that the provider opined the Veteran presented with severe cardiovascular and musculoskeletal disabilities that were more probable than not "secondary to military service; however, the provider does not specify which particular disability is supported by the opinion or give any specifical rationale or reference to records to support these findings. As such, the Board finds the opinion inadequate and afforded less probative value. The Board also notes that review of the record does not show a VA examination has been held for the above appealed issues. In the April 2020 Board decision, the Board denied entitlement to service connection to the above issues and found that a VA medical nexus opinion was not warranted for the appealed issues. The Board decision acknowledged a March 2016 private medical report but found the findings "does not demonstrate a diagnosis." The June 2021 Court decision found the April 2020 Board rationale to be inadequate, stating that a medical must be provided if there was "competent evidence of a current disability or persistent or recurrent symptoms... evidence establishes that the claimant suffered an in-service event injury or disease... evidence indicating that a disability or recurrent symptom of a disability may be associated with the claimant's service... and there is insufficient evidence to make a decision on the claim." See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006). The Court emphasized the language of the that indicated "peristent or recurrent symptoms of disability" and noted that there was a low threshold to "indicate there may be a nexus." The Court found that the April 2020 Board decision did not provide an adequate reason or bases to explain why the March 2016 private medical report did not satisfy McLendon; as such, the Court vacated the above issues and remanded the issues to the Board for reconsideration. The Court also found the April 2020 Board decision did not address whether the March 2016 medical report findings constituted functional impairment to meet a current disability pursuant to Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018)." Wait v. Wilkie, 33 Vet. App. 8, 10 (2020). The Board decision did not address the report's findings that the Veteran was unable to lift heavy weights or perform routine duties. The Court also found remand was warranted for the Board for reconsideration. As such, the Board finds that remand is warranted to obtain a VA examination on the nature and etiology of the appealed issues. The Board also notes that an August 2021 Social Security Administration (SSA) inquiry indicates the Veteran was granted entitlement in February 2019. Review of the record does not show that the SSA decision or related SSA documents have been associated with the record. As the SSA records may provide pertinent evidence as to the Veteran's claims, remand is also warranted to obtain these records that relate to the Veteran's claimed issues. See Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records to include the February 2017 VAMC sleep study results. Any applicable VISTA imaging should be produced. 2. Request that the Veteran provide the names and addresses of any and all healthcare providers who provided treatment for the Veteran's claimed sleep disorder; cervical spine disability; back disability; right ankle disability; right hip disability; left hip disability; a right foot disability; and a left foot disability to include the February 2017 private sleep study. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims folder. 3. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 4. Confirm with the Social Security Administration (SSA) whether the Veteran is receiving SSA disability benefits, obtain his SSA records relating to his claims for nasal trauma, allergic rhinitis and TDIU and associate them with the Veteran's claims file. All records/responses received must be associated with the electronic claims file. 5. Schedule a VA examination with an appropriate provider to determine the nature and etiology of the Veteran's sleep disorder; cervical spine disability; back disability; right ankle disability; right hip disability; left hip disability; a right foot disability; and a left foot disability. The complete record, to include a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should respond to the following: (a.) Identify each current cervical spine disability; back disability; right ankle disability; right hip disability; left hip disability; a right foot disability; and a left foot disability, which may include pain alone that rises to the level of functional impairment. If either disability existed during the appeal period but has resolved, this should be made clear. (b.) The examiner should record in detail the Veteran's history of his claimed cervical spine disability; back disability; right ankle disability; right hip disability; left hip disability; a right foot disability; and a left foot disability and how they affect his ability to function. (c.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's sleep disorder arose in service or is etiologically related to his military service? (d.) For each cervical spine disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service? If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment. (e.) For each back disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service? If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment. (f.) For each right hip disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service? If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment. (g.) For each left hip disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service? If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment. (h.) For each right foot disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service? If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment. (i.) For each left foot disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service? If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment. (j.) In addressing any of the above, the VA examiner should address and discuss the March 2016 private medical report findings. (k.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (l.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). (m.) If the examiner cannot provide an answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided. (n.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 6. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.