Citation Nr: 21072650 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-00 061A DATE: December 3, 2021 REMANDED Service connection for a left calf condition is remanded. Service connection for a left knee condition is remanded. Service connection for a lumbosacral spine disability is remanded. Service connection for left lower extremity radiculopathy is remanded. Service connection for any acquired psychiatric disability, to include PTSD, is remanded. Service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1978 to September 1982. These matters come to the Board of Veterans' Appeals (Board) on appeal from July 2014 and May 2017 rating decisions issued by the Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran separately appealed both rating decisions requesting a hearing before the Board. All of the claims were subsequently merged into one appeal stream and a hearing on all of the claims was held in July 2021, a transcript of which has been associated with the claims file and reviewed. Duty to Assist Upon review, the Veteran's private treatment records reference a motor vehicle accident in 2013. While VA treatment records have been obtained from February 2016 through December 2018, attempts to obtain VA treatment records prior to 2016 and after 2018 should be made upon remand. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Service connection for a left calf condition is remanded. 2. Service connection for a left knee condition is remanded. The Veteran contends he has left calf and left knee conditions that are related to service. The Board finds the evidence of record is insufficient to resolve the Veteran's claims. Regarding the left knee, the Veteran was afforded a VA examination in March 2015, during which the examiner relied upon imaging that revealed internal derangement. Imaging from the date of the VA examination, however, references degenerative changes. Of note, the provider indicates that the degenerative joint disease of the knees is "most likely age related." While the Board acknowledges this opinion of record, it is not supported by a rationale and does not consider the Veteran's lay statements regarding onset and persistence. Thus, remand is necessary for a VA examiner to consider this diagnosis. Additionally, the examiner did not address the Veteran's lay assertions including the contention that marching during service is related to his current left knee condition. See Miller v. Wilkie, 32 Vet. App. 249 (2020). As such, remand is necessary for another VA examination regarding the knee. Regarding the left calf, the Veteran declined a muscle examination as part of the March 2015 VA examination of record. The Veteran apparently stated that his notations of calf pain in VBMS were not accurate. Upon review, STRs mention calf pain multiple times during service. Further, post-separation treatment records reference calf pain with statements regarding onset as well as other lay assertions of record. While the Board acknowledges the Veteran declined an examination, affording the Veteran the benefit of the doubt, the Board finds another opportunity for a VA examination regarding the calf is warranted, especially in consideration of the medical evidence of record. As such, remand is necessary to afford the Veteran another VA examination regarding the left calf. Accordingly, these claims are remanded for another VA examination. 3. Service connection for a lumbosacral spine disability is remanded. 4. Service connection for left lower extremity radiculopathy is remanded. The Veteran contends he has a lumbosacral spine disability and left lower extremity radiculopathy that is related to service. The Board finds remand is necessary to afford the Veteran another opportunity to attend a VA examination to determine the nature and etiology of any lumbosacral spine disability and / or left lower extremity radiculopathy. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges the Veteran was previously scheduled for a VA examination for these claims, however, the examinations were cancelled based on the Veteran's unavailability. The Veteran testified that he was unavailable for the examination due to caring for his aging and ill parents. The Board finds the Veteran's testimony regarding the circumstances surrounding his cancelled examinations amounts to good cause. Thus, these claims are remanded to afford the Veteran another opportunity to appear for VA examinations. See 38 C.F.R. § 3.655. The Board notes the record contains multiple reports of back pain during service. Post-separation, treatment records reference complaints of chronic back pain with radiation to the left lower extremity and a car accident in June 2013. There are also lay statements of record referencing symptom persistence and onset. These records and lays statements should be considered during the VA examination. These claims are remanded to afford the Veteran another opportunity to appear for a VA examination. 5. Service connection for any acquired psychiatric disability, to include PTSD, is remanded. The Veteran contends he has an acquired psychiatric condition, including PTSD, that was caused by service. The Board finds remand is necessary to afford the Veteran another opportunity to attend a VA examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also McLendon, 20 Vet. App. 79. The Board acknowledges the Veteran was previously scheduled for a VA examination for this claim, however, the examination was cancelled based on the Veteran's unavailability. The Veteran testified that he was unavailable for the examination due to caring for his aging and ill parents. The Board finds the Veteran's testimony regarding the circumstances surrounding his cancelled examination amounts to good cause. Thus, this claim is remanded to afford the Veteran another opportunity for a VA examination. See 38 C.F.R. § 3.655. The Board also notes the Veteran's service connection claim has been recharacterized as "any acquired psychiatric disability, to include PTSD" under Clemons. As mentioned above, the Veteran's treatment records reference multiple conditions including depression, anxiety, and PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). As this claim is being remanded herein for additional development, the Veteran should be afforded a VA examination for any acquired psychiatric disability, to include PTSD. Thus, this claim is remanded for a VA examination. 6. Entitlement to service connection for OSA as secondary to any acquired psychiatric disability is remanded. While testimony regarding OSA was not offered as part of the July 2021 hearing, the Veteran has consistently contended that his OSA is secondary to his non-service-connected PTSD. In support thereof, the Veteran has submitted a medical article discussing a possible association between PTSD and OSA. As the Veteran's service connection claim for any acquired psychiatric disability, to include PTSD, is being remanded herein for additional development, the Board finds this claim is inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any of the Veteran's outstanding VA treatment records prior to February 2016 and after December 2018 and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment records not currently of record, to include any treatment received in connection with the June 21, 2013, car accident. Make two requests for any facility where authorized records forms are received unless it is clear after the first request that a second request would be futile. 3. After the above development and records are obtained to the extent possible, schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any left knee and / or left calf disability. The entire claims file and this remand should be made available for review. The examiner should render an opinion, including rationale, addressing the following: - Whether the Veteran has a left knee and / or left calf disability? The examiner is directed to address and consider the Veteran's treatment records referencing degenerative joint disease of the left knee as well as treatment records referencing left calf pain. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment of earning capacity, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. - For any arthritis disability, is it at least as likely as not that it (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In so opining, the examiner is directed to address and consider the Veteran's lay statements of onset and persistence of symptoms since service as well as the other treatment records and lay assertions of record. - For any other disability of the left knee and / or left calf, is it at least as likely as not incurred in or otherwise related to service, to include marching? In so opining, the examiner is directed to address and consider the Veteran's STRs noting multiple reports of left calf pain and post-separation treatment records referring to onset during service. The examiner should address and consider the lay assertions of record regarding onset and symptoms. 4. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any lumbosacral spine disability and / or left lower extremity radiculopathy. The entire claims file and this remand should be made available for review. The examiner should render an opinion, including rationale, addressing the following: - Whether the Veteran has a lumbosacral spine disability and / or left lower extremity radiculopathy? In so opining, the examiner is directed to address and consider the references to spondylosis, anterolisthesis, chronic lower back pain, and lower back pain with radiation to the left lower extremity within the Veteran's treatment records. - For any arthritis and / or left lower extremity radiculopathy disability, is it at least as likely as not that it (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In so opining, the examiner is directed to address and consider the multiple notations of lower back pain during service as well as the lay statements of record from the Veteran and his brother referencing back pain that began during service and continued after separation. - For any other disability of the lumbosacral spine and / or left lower extremity radiculopathy, is each disability at least as likely as not incurred in or otherwise related to service, including repeated marching? In so opining, the examiner is directed to address and consider the Veteran's service treatment records noting lower back pain multiple times as well as the lay statements of record regarding onset with continued symptoms since service. - Regarding specifically any diagnosed left lower extremity radiculopathy, whether it is at least as likely as not caused by or aggravated by any lumbosacral spine disability? In so opining, the examiner is directed to address and consider the treatment records noting lower back pain with radiation to the left lower extremity in 2018. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 5. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The entire claims file and this remand should be made available for review. - If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to his contended in-service stressors. - If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the loss of a fellow service member who followed a shortcut the Veteran provided and the death of the base commander's daughter or the in-service notations of treatment for situational anxiety and depression related to his mother's condition. In so opining, the examiner is directed to address and consider the Veteran's treatment records during service referencing anxiety, depression, and family maladjustment as well as his post-separation treatment records referencing depression, anxiety, and PTSD. 6. If (and only if) service connection for PTSD is granted, schedule the Veteran for a VA examination before an appropriate examiner to determine whether the Veteran has obstructive sleep apnea that is secondary to PTSD. The entire claims file and this remand should be made available for review. The examiner should render an opinion, including rationale, addressing the following: - Whether it is at least as likely as not the Veteran has OSA that was caused by PTSD? - Whether it is at least as likely as not the Veteran has OSA that was aggravated by PTSD? In so opining, the examiner is directed to address and consider the medical journal article of record discussing a possible association between OSA and PTSD. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 7. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.