Citation Nr: 21072381 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-03 653 DATE: December 3, 2021 REMAND Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran had active service in the Army from November 1976 to November 1979 and in the Navy from May 1980 to April 1988 and from August 1988 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In an April 2020 Decision, the Board denied entitlement to service connection for (1) a psychiatric disability, (2) OSA, and (3) a respiratory disability; and remanded entitlement to service connection for a (4) a right knee disability, (5) a left knee disability, (6) a back disability, and (7) a right eye disability. With respect to the remanded claims, the Board ordered that the Veteran be provided original VA examinations and opinions. The Veteran appealed the Board's denial of issues (1) through (3) (as enumerated above), to the United States Court of Appeals for Veterans Claims (CAVC). The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of a November 20, 2020, Joint Motion for Partial Remand (JMPR). The Parties agreed that the Board erred when it failed to ensure that the agency of original jurisdiction (AOJ) fulfilled its duty to assist. Specifically, the AOJ failed to provide the Veteran any communication informing him of the evidence needed to substantiate his claims pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Thus, remand was required for the AOJ to provide the Veteran with this notice. By a November 25, 2020, Order, the CAVC adopted the Parties' JMPR and vacated the Board's April 2020 Decision with respect to issues (1) through (3), remanding them back for appellate consideration. In December 2020, the AOJ afforded the Veteran VA examinations with etiological opinions for his bilateral knee disabilities (discussed more fully below). In an April 2021 Rating Decision, the AOJ awarded the Veteran service connection for, among other things, a back and right eye disability. Thus, the issues of service connection for a back and right eye disability are not before the Board and no longer will be discussed. In a May 2021 Decision, the Board remanded issues (1) through (3) so that the AOJ could provide the notice specified in the JMPR. It also instructed the AOJ to complete any additional development deemed necessary. The requisite notice was provided in May 2021, and the AOJ provided, on its own accord, the Veteran with initial VA examinations with etiological opinions for issues (1) through (3) (discussed more fully below). Thus, all five issues are back before the Board for appellate consideration. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge (VLJ) shall remand the case to the agency of original jurisdiction (AOJ), specifying the action to be undertaken. 38 C.F.R. § 20.904(a). 1. Entitlement to service connection for an acquired psychiatric disability is remanded. The representative for the Veteran contends that the Veteran served aboard the U.S.S. Portland LSD37, which was assigned to the Mediterranean-Lebanon area from May 1983 to December 1983. He further asserts that the Veteran's service thereon coincided with the Beirut bombing. See Oct. 12, 2021, Written Brief Presentation at 2. The Veteran has asserted he has an acquired psychiatric disability resulting from this service. Contained in the Veteran's claims file are three DD Forms 214 for three different periods of active service: November 1976 to November 1979, May 1986 to April 1988, and August 1988 to August 1990. The records, however, show that the Veteran had more service than reflected in these Forms, given that the most recent DD Form 214 shows that the Veteran had almost twelve years of active service. As such, a remand is needed for the AOJ to attempt to obtain service personnel records which appear to be missing, as they could contain evidence of service in or around Beirut which could help substantiate the Veteran's claim. In addition, the July 2021 VA psychiatric examiner noted that the Veteran currently does not suffer a psychiatric disability. However, for VA compensation purposes, a "current disability" is one that has existed at any time during the pendency of a claim or recently before the filing of a claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed this claim in January 2016, and the claims file contains VA treatment records from October 2015 and August 2016 with depression screenings for the Veteran showing "moderately severe depression." Because the examiner did not address this pertinent evidence or discuss whether the Veteran had a psychiatric disability during the pendency of this claim which has resolved or whether such findings were in error, an addendum opinion is also needed before the Board can decide this claim. Furthermore, the examiner may have relied upon the lack of personnel records confirming the Veteran's alleged service in or around Beirut in opining against service connection for a psychiatric disability stemming from such service. As the Board has already determined records are incomplete regarding the Veteran's service, this opinion should be obtained only after the AOJ has sought and obtained any missing personnel records. 2. Entitlement to service connection for OSA is remanded. The AOJ provided the Veteran with a VA sleep apnea examination in July 2021. The examiner concluded the following: "The Veteran does have a diagnosis of [OSA], however there is no nexus between the OSA and the Veteran's shortness of breath. The OSA was diagnosed almost 20 years after service. Therefore, the OSA was less likely than not caused by the shortness of breath." The examiner's statement that the Veteran's OSA is unrelated to "the shortness of breath," is unclear as to how this relates, or fails to relate, to his service. Thus, the Board finds that the examiner did not clearly explain why she believed that the Veteran's OSA was not related to service. As such, a remand is warranted for an adequate VA opinion to be obtained. Further, in his December 2016 Notice of Disagreement (NOD), the Veteran indicated that he believed his OSA was due to an "undiagnosed illness." Regarding this contention, the Board notes that OSA is a diagnosed illness. However, to the extent that the Veteran is attempting to relate this condition to exposures due to service in the Persian Gulf War, while the record reflects that the Veteran served seven days during the Persian Gulf War (having separated from service on August 9, 1990), the record is unclear as to whether any of that time was spent in the Southwest Asia theater of operations. Accordingly, the Veteran's complete service personnel records are also needed before the Board can determine if additional development is needed for this theory of service connection. 3. Entitlement to service connection for a respiratory disability is remanded. The Veteran underwent a July 2021 VA respiratory examination, at which time the examiner provided no diagnosis. In the associated opinion, the examiner stated: "I am unable to render a definitive diagnosis for this claimant. His specialist [is] unable to render a definitive diagnosis other than the general diagnosis of Dyspnea. He is currently undergoing additional diagnostic testing with specialists to try and determine a diagnosis." The most updated VA treatment records associated with the claims file are dated July 26, 2021, and the earliest one concerning the Veteran's respiratory condition is dated July 12, 2021. Thus, there is a possibility that there are additional, outstanding records from the Veteran's VA pulmonologist which could contain a diagnosis for a respiratory disability. As such, these records must be obtained before the Board can decide this claim. 4. Entitlement to service connection for bilateral knee disabilities is remanded. In December 2020, the Veteran was afforded a VA knee conditions examination to determine the etiology of his bilateral knee disabilities. At that time, the Veteran reported that the conditions began in 1984 as a result of continuous training and injuries during service. The examiner opined against service connection for the Veteran's bilateral knee disability because his service treatment records did not contain reports of treatment for or diagnosis of any knee conditions in service. Although the examiner recognized that the Veteran complained at separation of painful joints, because the Veteran did not specify which joints were painful, the examiner did not consider this as evidence of knee symptoms in service. Further, as the Veteran's representative points out, the Veteran did indicate on a Report of Medical History in service that he was unsure whether he had a trick or locked knee. The examiner also failed to address this piece of positive evidence in assessing whether the Veteran could have had a bilateral knee condition that began during or was caused by service. Because the opinion failed to sufficiently consider the Veteran's lay reports of potentially experiencing knee symptoms in service and all pertinent evidence of record, a new opinion is needed before the Board can decide these claims. The matters are REMANDED for the following actions: 1. Obtain VA treatment records from July 2021 to present, to specifically include updated pulmonary records showing special testing to determine any diagnosis for a respiratory condition. 2. Obtain any outstanding service personnel records. If there are outstanding records that cannot be obtained, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. After all outstanding available service personnel records have been associated with the claims file, obtain an addendum opinion to the July 2021 VA psychiatric examination from an appropriate examiner. The examiner shall answer the following: (a.) At any time during the pendency of the appeal (from January 2016 to present), has the Veteran had a diagnosable acquired psychiatric disability? In answering this question, the examiner specifically must consider the October 2015 and August 2016 depression screenings in the Veteran's VA treatment records that indicate he suffered from moderately severe depression. If no diagnosis is determined to be warranted at any time during the appeal period, the examiner must explain why with a complete and thorough opinion and rationale. (b.) If the Veteran has had a diagnosed acquired psychiatric disability at any time during the pendency of the appeal (from January 2016 to present), is it at least as likely as not (a fifty percent probability or greater) that the Veteran's psychiatric disability occurred in, or is the result of, any incident of active service, to include any incident of his alleged service during the Beirut bombing in 1983? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. After all outstanding available service personnel records have been associated with the claims file, obtain an addendum opinion to the July 2021 VA sleep apnea examination from an appropriate examiner. The examiner shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's OSA occurred in, or is the result of, any incident of active service, to include exposures due to service in the Southwest Asia theater of operations during the Persian Gulf War if such service is shown in the Veteran's service personnel records? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 5. Obtain an addendum opinion to the December 2020 VA bilateral knee examination from an appropriate examiner. The examiner shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's bilateral knee disabilities occurred in, or are the result of, any incident of active service? In answering this question, the examiner specifically should discuss the fact that the Veteran indicated at separation that he had swollen/painful joints, arthritis, rheumatism, or bursitis and also indicated that he was unsure whether he had a trick or locked knee. Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. CLAIRE M. DAVIDOSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.