Citation Nr: 21072138 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-16 272 DATE: December 2, 2021 ORDER Entitlement to service connection for thoracolumbar spine pain, as due to an undiagnosed illness, is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED Entitlement to an initial compensable rating for service-connected right ankle stress fracture/condition/Broström procedure is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an ear disability, claimed as a perforated ear drum, is remanded. Entitlement to service connection for a disability manifested by left knee pain is remanded. Entitlement to service connection for a disability manifested by right knee pain is remanded. Entitlement to service connection for a disability manifested by anxiety is remanded. Entitlement to service connection for a disability manifested by insomnia, claimed as sleep disturbances, is remanded. Entitlement to service connection for left ankle pain, as due to an undiagnosed illness, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran's thoracolumbar spine pain had its onset during active service, results in non-medical indicators that have been independently verified, has persisted since service, and has not been attributed to a clinical diagnosis. 3. The competent, credible, and probative evidence of record establishes that the Veteran's current OSA is related to his period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for thoracolumbar spine pain, as due to an undiagnosed illness, have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317, 3.102. 2. The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2005 to June 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in December 2016 and February 2017. When perfecting his appeal via VA Form 9 in March 2019, the Veteran requested a Travel Board hearing; however, after he was notified of the scheduled hearing, the Veteran withdrew his request for a hearing. See May 2019 correspondence. As such, the Board finds the Veteran has been afforded all due process with respect to his right to a hearing. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for a Persian Gulf War veteran who exhibits objective indications of qualifying chronic disability that became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). A qualifying chronic disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) IBS; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that VA determines warrants a presumption of service connection under 38 U.S.C. § 1117(d). 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). In this case, the Veteran's DD Form 214 reflects that he served in Iraq from April 2007 to June 2008 and from September 2009 to July 2010, for which he received the Iraq Campaign Medal with Campaign star. This evidence sufficiently establishes his service in Southwest Asia. Therefore, the Veteran is considered a Persian Gulf War veteran with qualifying active service sufficient to trigger the application the laws and provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317(a)(1). 1. Entitlement to service connection for a thoracolumbar spine disability, claimed as mid and lower back pain The STRs reflect that the Veteran complained of and sought treatment for mid and low back pain on numerous occasions during service. Indeed, the evidence shows complaints of back pain as early as February 2007 and, while the Veteran did not report any precipitating trauma or injury, he stated that the pain occurred from wearing body armor. He was diagnosed with a possible muscle strain at that time, prescribed medication, and told to return as needed. In 2012, the Veteran endorsed having consistent chronic cervical and lower back pain but, in February 2014, he reported mid-back pain that had been chronic since 2010. In this regard, he reported being in a motor vehicle accident in 2010 but also stated that deployment, field exercises, and wearing gear exacerbated his symptoms. He also noted that his symptoms had increased since September 2013 when he attended class and field exercises for five weeks. Nevertheless, a January 2014 x-ray of the thoracic spine was normal. In May 2014, the Veteran reported developing low back pain as a result of being in the field. The STRs show that he was prescribed physical therapy, but the Veteran continued to report having chronic mid and low back pain despite treatment. See e.g., STRs dated February 2012, January 2014, February 2014, May 2014, and June 2014. In July 2014, an MRI revealed bilateral pars defect at L5 with trace edema, for which he was given injections with only mild improvement. He was given a provisional diagnosis of lumbar spondylolysis in December 2014, but a lumbar spine MRI performed in May 2015 was normal and, as such, the diagnosis of chronic low back pain was continued. See STRs dated July 2015, May 2015, and January 2016. The Veteran was afforded a VA back examination in October 2016 during which he reported having low and mid back pain in service due to running with gear. The Veteran endorsed having difficulty bending and sitting a long time due to his thoracolumbar spine condition; however, objective examination revealed normal range of motion of the spine without pain and muscle strength, reflexes, and sensory examination of his lower extremities were normal. Indeed, after examining the Veteran and reviewing the claims file, the VA examiner noted that the Veteran had an episode of acute thoracolumbar strain that was treated and resolved in service, but the examiner stated that the current physical findings of range of motion and the latest x-rays of the thoracic spine (in January 2014) and MRI of the lumbar spine (in May 2015) were normal. See October 2016 VA examination. The claims file also contains VA treatment records dated from September 2016 to December 2017 which document numerous complaints of chronic low back pain and reflect occasional objective findings such as mild tenderness in the paravertebral muscles and lumbar lordosis; however, the treatment records do not reflect that the Veteran's subjective complaints of low back pain or the objective findings in the thoracolumbar spine have been attributed to an underlying disability or diagnosis. Instead, the Veteran's condition has been assessed as low back pain. See e.g., VA treatment records dated November and December 2016 and July 2017. The Board acknowledges that, in October 2017, the Veteran submitted a Thoracolumbar Spine Disability Benefits Questionnaire (DBQ) that was completed by M.M., NP, wherein she noted the Veteran's report that, in 2013, he injured his low back while walking on uneven terrain and falling backwards. The clinician noted the Veteran was diagnosed with degenerative disc disease and spondylolisthesis and opined that the current lumbar spine disability was as likely as not caused by the injury he sustained in service. See October 2017 DBQ, page 1 and page 11. While the October 2017 DBQ submitted by the Veteran purports to establish that the Veteran's chronic low back pain has been diagnosed as degenerative disc disease and spondylolysis that is due to his military service, the Board notes that the diagnoses reported by the clinician were based upon the July 2014 MRI conducted while the Veteran was in service. The Board also notes that the clinician incorrectly reported the findings of the July 2014 MRI and did not identify any radiologic or objective findings that supported the diagnoses reported in the October 2017 DBQ. In fact, the clinician noted that a more recent MRI of the lumbar spine was normal. See October 2017 VA treatment record. Therefore, the October 2017 DBQ is not considered credible or probative evidence. Nevertheless, the preponderance of the evidence shows that, after considering the Veteran's history and conducting numerous clinical evaluations, clinicians have not attributed his current reports of chronic mid and low back pain to any known clinical diagnosis. In this regard, the Board notes that, while an in-service MRI revealed bilateral pars defect at L5 with trace edema, a subsequent MRI of the lumbar spine was normal, and the Veteran has been assessed with chronic low back pain since with objective findings of tenderness in the paravertebral muscles and lumbar lordosis, as opposed to an actual clinical diagnosis or thoracolumbar spine disability. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's claimed thoracolumbar spine pain is due to an undiagnosed illness. In making this determination, the Board notes that the governing regulation states that undiagnosed illnesses that first manifest after service must be manifest to a degree of 10 percent or more. 38 C.F.R. § 3.317(a)(1)(i). However, this standard does not apply in this case, as the lay and medical evidence of record, inclusive of the STRs, sufficiently establish that the Veteran's chronic mid and low back pain began during service and has persisted since that time. As such, the requirements of 38 C.F.R. § 3.317(a)(1)(i) are satisfied in this case. Accordingly, service connection for thoracolumbar spine pain, as due to an undiagnosed illness, is warranted. 2. Entitlement to service connection for obstructive sleep apnea (OSA) The Veteran's STRs show that he was noted to have a diagnosis of sleep apnea during his period of active service. For example, in February 2012, a clinician noted that he had sleep apnea with a severely disturbed sleep pattern. In April 2013 the Veteran also endorsed many symptoms generally associated with sleep apnea, including restless sleep, snoring, and awakening with dry mouth and feeling tired. He also described the likelihood of falling asleep during the day while conducting various activities such as sitting and reading or talking to someone. The examining clinician noted the Veteran likely had obstructive sleep apnea syndrome with insomnia and ordered a sleep study. See April 2013 STR. Despite this evidence and the notations of sleep apnea in the STRs, the Board is unable to locate a sleep study that confirmed the presence of the disability. Nevertheless, review of the record reveals that the Veteran was diagnosed with moderate OSA following a sleep study that was performed by VA in March 2017. The Veteran was afforded a VA sleep apnea examination in March 2017 during which he reported snoring and witnessed apneas for 8 months. After examining the Veteran and reviewing the claims file, the VA examiner opined that it is as likely as not that the Veteran's current OSA is related to the symptoms he experienced during service, noting that the examination was conducted within one year of his military service. See March 2017 VA opinion. The Board notes that OSA is not a chronic disease for which presumptive service connection may be granted if manifested within one year of service. The Board also notes that the Veteran's report that his symptoms of snoring and witnessed apneas for 8 months would place the onset of those symptoms in approximately July 2016, which is one month after his separation from service. However, given the evidence showing treatment for symptoms generally associated with sleep apnea during service, the unconfirmed diagnosis of sleep apnea during service, the Veteran's reported medical history of continued symptoms following service, and the confirmed diagnosis of OSA within one year of service, the Board finds that the March 2017 VA opinion is consistent with the other evidence of record and, as such, is considered competent, credible, and probative evidence. Notably, there is no opposing medical evidence or opinion of record. Based on the foregoing, the Board finds the preponderance of the evidence, including the positive nexus opinion provided by the March 2017 VA examiner, supports the grant of service connection for OSA and, as such, the claim is granted. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for service-connected right ankle stress fracture/condition/Broström procedure is remanded. The Board finds a remand is needed in order to afford the Veteran an adequate VA examination. Indeed, while the Veteran was afforded a VA ankle examination in October 2016, it does not appear that the examiner conducted joint testing for pain in active and passive range of motion or in weight-bearing and nonweight-bearing. The other evidence of record also lacks information as to passive, weight-bearing, and nonweight-bearing range of motion testing in the right ankle joint. Therefore, the Board finds the examination of record does not comply with 38 C.F.R. § 4.59 and the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016), thereby necessitating the need for a remand. 2. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD), is remanded. The Veteran is seeking service connection for PTSD; however, the issue on appeal has been expanded and re-characterized to include all of the diagnoses reflected in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In evaluating this claim, the RO acknowledged the Veteran's stressful events in service, including fear of hostile military action, but denied the claim on the basis that there was no diagnosis of PTSD of record. See February 2017 rating decision. Indeed, review of the record reveals that, during a September 2016 VA mental disorders examination, the Veteran was diagnosed with cyclothymic disorder with attention deficit hyperactivity and inattention, for which service connection has been granted. However, the record reflects that, since he was afforded the September 2016 VA examination, the Veteran has been variously diagnosed with unspecified trauma-related disorder and disruptive mood dysregulation disorder. See e.g., VA treatment records dated February 2017 and July 2017. Given this evidence, the Board finds a remand is needed to afford the Veteran a new VA examination to clarify his diagnoses and obtain a medical opinion that addresses whether any currently diagnosed psychiatric disorder other than cyclothymic disorder with attention deficit hyperactivity and inattention are separate and distinct disabilities that are related to his military service. 3. Entitlement to service connection for an ear disability, claimed as a perforated ear drum, is remanded. The post-service evidence reflects that, during the appeal period, the Veteran has sought treatment for left ear pain that he attributed to a spider bite in 2007 while he was deployed to Iraq. See November 2016 VA treatment record. While the STRs do not document any treatment for a spider bite during service, the STRs show that the Veteran sought treatment for left ear pain in March 2007, which he reported persisted for two months. Additional evidentiary development is needed to clarify whether the Veteran's left ear pain is attributable to a known clinical diagnosis that was incurred during service or, in the alternative, represents an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to his service in Southwest Asia. Indeed, the Board is unable to determine if a formal diagnosis was rendered regarding the Veteran's left ear pain during service or the current appeal period, and the evidence also suggests an in-service event or disability to which the current complaints of left ear pain may be related. Therefore, a remand is needed for a VA examination and opinion. 4. Entitlement to service connection for a disability manifested by left knee pain is remanded. 5. Entitlement to service connection for a disability manifested by right knee pain is remanded. In the November 2016 rating decision on appeal (that was issued in December 2016), the RO denied service connection for left and right knee joint pain. In February 2017, the Veteran filed a timely NOD in which he expressed disagreement with the RO's denial of service connection for the claimed left and right knee disabilities. The RO did not, however, provide the Veteran with a statement of the case (SOC) addressing the left and right knee joint pain disabilities. See SOCs issued on March 6, 2017 and March 11, 2017. As a result, he has not yet had the opportunity to perfect his appeal with respect to the left and right knee claims. Under these circumstances, VA must provide the Veteran with an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 6. Entitlement to service connection for a disability manifested by anxiety is remanded. 7. Entitlement to service connection for a disability manifested by insomnia, claimed as sleep disturbances is remanded. 8. Entitlement to service connection for a disability manifested by left ankle pain The merits of the claims on appeal were last adjudicated in a March 2017 SOC. Since that SOC, additional evidence in the form of VA treatment records have been associated with the claims file, including records that address the Veteran's claims anxiety, insomnia, and ankle pain. Recognizing such, the Board requested a waiver of initial Agency of Original Jurisdiction (AOJ) of these records in a September 2021 letter to the Veteran and his representative. Neither the Veteran nor his representative responded to the letter or otherwise waived initial AOJ consideration of this evidence. Accordingly, these issues must be remanded to the AOJ for the issuance of an SSOC following consideration of the additional evidence. 38 C.F.R. § 19.31. 9. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran contends that he is unemployable because of a number of disabilities, including his service-connected right ankle and claimed knee disabilities. See December 2016 VA Form 21-8940. As such, the claim for TDIU is inextricably intertwined with claims being remanded herein and it would be premature to render a decision on the overall TDIU claim at this time. The matters are REMANDED for the following action: 1. Provide the Veteran with a statement of the case on the issue of entitlement to service connection for left knee joint pain and right knee joint pain. 2. Schedule the Veteran a VA examination to determine the current severity of his service-connected right ankle disability. All indicated tests should be performed, including testing the right ankle range of motion and pain levels in active and passive range of motion, after repetitive use, and in weight-bearing and nonweight-bearing. The examination report should include the degrees of motion for active and passive range of motion testing, as well as repetitive use testing. The examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use, and if so, estimate range of motion during flare-ups or repetitive use. If the examination does not take place during a flare-up or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flare-ups or repetitive use and provide the extent of motion loss described in terms of degrees based upon the lay and medical evidence of record. 3. Schedule the Veteran for a VA mental health and/or PTSD examination. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. After examining the entire record, the examiner should provide the following opinions: (a) Based upon the DSM-5 criteria, provide a diagnosis of any psychiatric disability manifested upon examination. If no diagnosis is rendered, the examiner must reconcile his/her findings with the diagnoses reflected in the record. (b) The examiner must specifically state whether the Veteran has a diagnosis of PTSD. Regarding a diagnosis of PTSD, the examiner should note that the Veteran's exposure to stressful events, including fear of hostile military activity has been acknowledged by VA. For each psychiatric disability identified above, provide an opinion as to the following: (c) Is it as likely as not (50 percent or higher degree of probability) that the disability was incurred during or as a result of the Veteran's military service, including any traumatic events experienced by the Veteran? (d) Is it as likely as not (50 percent or higher degree of probability) that the disability is separate and distinct from his service-connected cyclothymic disorder with attention deficit hyperactivity and inattention? In answering the foregoing, the examiner must address the lay and medical evidence of record and provide a clear rationale for each opinion offered. 4. Schedule the Veteran a VA ear examination. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. The examiner is requested to provide an opinion as to the following: (a) Is the Veteran's reported left ear pain (i) a diagnosable but medically unexplained chronic multisymptom illness; (ii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology; or (iii) a disease with a clear and specific diagnosis, etiology, and pathophysiology? The term medically unexplained chronic multisymptom illness (MUCMI) means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. (b) The response to the question of whether the Veteran's left ear pain is a MUCMI should include a discussion of the pathophysiology and etiology of the Veteran's reported left ear pain. Pathophysiology is defined as the physiology of abnormal states; specifically, the functional changes that accompany a particular syndrome or disease. Consideration of pathophysiology and etiology is a veteran-specific inquiry, as opposed to an inquiry regarding the general knowledge of the medical community. (c) If the Veteran's left ear pain is consistent with either (ii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology or (iii) a disease with a clear and specific diagnosis, etiology, and pathophysiology, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the left ear pain was incurred in or is otherwise related to service, to include the report of left ear pain in March 2007. In answering the foregoing, the examiner must consider and address the service and post-service treatment records, as well as the lay statements of record regarding the onset of his symptoms. A complete rationale must be provided for any opinion offered. 5. Readjudicate the issues on appeal with consideration of all evidence associated with the claims file since the March 2017 SOC. If the benefits sought on appeal is not granted, the Veteran and his representative should be furnished an SSOC and afforded a reasonable opportunity to response before the claims file is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.