Citation Nr: 21070977 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-47 552 DATE: November 29, 2021 REMANDED Whether new and material evidence has been received to reopen a claim of service connection for a sleep disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to a disability rating in excess of 20 percent for lumbosacral myositis and lumbar disc degeneration is remanded. Entitlement to a compensable rating for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a rating in excess of 10 percent for left knee tendonitis is remanded. REASONS FOR REMAND The Veteran served on active duty from July to October 1978, February 2004 to November 2006, and August 2010 to October 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in August 2019. Unfortunately, a transcript of the hearing is not available for review due to a malfunction with the Digital Audio Recording System during the hearing. The Veteran was informed of the malfunction in a letter dated June 3, 2020, and was afforded an opportunity to request another Board hearing. (6/3/2020, Correspondence, p. 1). In a letter dated June 19, 2020, the Veteran indicated that he did not want another hearing. The Board will therefore make a decision on the appellate record as it currently stands. This case was previously before the Board in July 2020, on which occasion the claims were remanded. 1. Whether new and material evidence has been received to reopen a claim of service connection for a sleep disability is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA sleep apnea examination in October 2020, wherein a VA examiner indicated that the Veteran does not have a current diagnosis of sleep apnea. No sleep study was conducted as part of the examination, but the Veteran did apparently inform the examiner that he underwent a sleep study at a non-VA facility in 2017. (10/20/2020, C&P Exam, p. 4). However, these records are not currently associated with the claims folder. A remand is required to allow VA to obtain authorization and request these records. Additionally, in the July 2020 Board decision the undersigned ordered that an examination be conducted to determine if the Veteran has a sleep disability. The July 2020 decision did not limit the scope of the development to sleep apnea specifically. Indeed, in remanding the claim the Board explicitly noted private medical records which reflect a diagnosis of, and treatment for, insomnia. Upon remand, the Veteran should be afforded an examination to determine the nature and etiology of any sleep disability, to include insomnia and sleep apnea. 2. Entitlement to service connection for a right shoulder disability is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA examination and opinion in October 2020, wherein a VA examiner diagnosed rotator cuff tendonitis and acromioclavicular joint osteoarthritis. The examiner opined that these disabilities were less likely than not incurred in service as there is no objective medical evidence of record supporting the Veteran's claim that he injured his shoulder during his deployment to Afghanistan. In support of their opinion, the examiner notes that the Veteran was afforded a post-deployment health assessment, which was silent for any shoulder injury. (10/20/2020, C&P Exam, p. 11). The Board finds that the October 2020 medical opinion is inadequate on several grounds. First, the examiner does not acknowledge or address lay statements from service members that reported witnessing the Veteran's injury. VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Nothing in the regulatory or statutory provisions require both medical and competent lay evidence. Indeed, competent lay evidence can be sufficient in and of itself to substantiate a disability claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Second, in concluding that the Veteran's post-deployment health assessment was silent for any shoulder injury, the examiner reached an inaccurate factual conclusion. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a medical opinion based on inaccurate factual premise has no probative value). A review of the post-deployment health assessment demonstrates that the Veteran endorsed experiencing muscle aches and swollen, stiff or painful joints during his deployment. (2/8/2016, Medical Treatment Record, p. 2). As the October 2020 opinion is inadequate for evaluation purposes, the claim must be remanded for further medical development. 3. Entitlement to a disability rating in excess of 20 percent for lumbosacral myositis and lumbar disc degeneration is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA thoracolumbar spine examination in October 2020. The examiner measured the Veteran's initial range of motion and noted a forward flexion of 70 degrees. The Veteran was able to perform repetitive use testing of at least three repetitions with no additional loss of function or range of motion. Regarding repeated use over time, the examiner indicated that the Veteran was being examined immediately after repetitive use over time, but provided no support for this finding. The examiner did not provide an estimate of functional loss during flare-ups. (10/20/2020, C&P Exam, p. 5-6). The Board finds that the October 2020 examination is inadequate for evaluation purposes as the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In this regard, the examiner indicated that the Veteran does not experience flare-ups of pain, but also indicated that his lower back pain varies from a 5 out of 10 to a 10 out of 10. The examiner further noted that the Veteran's pain can be provoked by prolonged sitting, prolonged walking, and twisting. In Sharp, the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. As the examiner failed to describe the extent of the Veteran's functional impairment, the Board finds that the claim must be remanded for further development. 4. Entitlement to a compensable rating for gastroesophageal reflux disease (GERD) is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to a compensable rating for GERD. In the Board's July 2020 decision, the Board remanded the claim for an examination to determine the current severity of the Veteran's GERD. In doing so, the Board specifically directed the examiner to include a discussion of whether the Veteran's GERD symptoms are productive of considerable impairment of health. The Veteran was afforded a VA examination in October 2020. In the examination report the examiner noted the Veteran's current signs and symptoms of GERD and his current treatment. However, the requested discussion of whether the Veteran's GERD symptoms are productive of considerable impairment of health was not included. (10/20/2020, C&P Exam, p. 4). As such, the Board finds that the July 2020 remand directives were not substantially complied with. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Entitlement to a rating in excess of 10 percent for left knee tendonitis is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Since the November 2020 supplemental statement of the case (SSOC), the Veteran was afforded a new VA knee and lower leg examination in June 2021. (6/30/2021, C&P Exam, p. 1). The RO has not issued an SSOC informing the Veteran of additional evidence generated by the June 2021 examinations. Therefore, the Board concludes that a remand is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from November 2020 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for McLaren Hospital. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for a sleep disability, to include sleep apnea and insomnia. The examiner must review the claims file and provide a response to the following: Is the Veteran's sleep disability at least as likely as not related to service? 4. Schedule the Veteran for a VA examination for his claimed right shoulder disability. The examiner must review the claims file and provide a response to the following: Is the Veteran's right shoulder disability at least as likely as not related to service, including a weightlifting accident during his deployment? The examiner is reminded that nothing in the regulatory or statutory provisions require both medical and competent lay evidence, and that competent lay evidence can be sufficient in and of itself to substantiate a disability claim. Bearing this in mind, the examiner should consider lay statements indicating that the Veteran injured his shoulder while weightlifting. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral myositis and lumbar disc degeneration. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected GERD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner MUST specifically state whether this disability involves recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain. The examiner MUST also include a discussion of whether it is productive of considerable impairment of health. The examiner MUST comment on whether the disability is manifested by pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms productive of severe impairment of health. 7. Regarding the claim of entitlement to a rating in excess of 10 percent for left knee tendonitis, a VA medical examination was conducted after the November 2020 SSOC. Therefore, a new SSOC should be issued. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, Associate 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.