Citation Nr: 21073683 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 19-29 702 DATE: December 9, 2021 REMANDED Entitlement to service connection for a back disability, to include arthritis, is remanded. Entitlement to service connection for a right and left hand arthritis, is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1956 to January 1976. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied, inter alia, entitlement to service connection for arthritis of the back, arthritis in both hands, and sleep disorder. The Veteran's notice of disagreement was received in May 2015. The RO issued a statement of the case in September 2019. The Veteran's VA Form 9, substantive appeal to the Board, was received in September 2019 in which he requested a Board hearing. In November 2019, the Veteran withdrew his request for a Board hearing. The Veteran's request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704 (e). As an initial matter, the majority of the Veteran's service treatment records have not been located, however, it does not appear that all reasonable efforts to obtain the missing records have been exhausted. Most recently, in July 2018 correspondence to the Veteran, VA informed the Veteran that they attempted to obtain the Veteran's service treatment records from the National Personnel Records Center (NPRC), from McGuire Air Force Base (AFB), and from the Veteran himself. The correspondence further notes that the NPRC responded that the Veteran hand carried his health records at separation point, and that they may have been lent to McGuire AFB. McGuire AFB responded that no records were located at that location. Finally, the correspondence indicates that the RO requested service treatment records from the Veteran in June 2018, and the Veteran did not respond to that request. Notably, however, in May 2018, the Veteran submitted a copy of his June 1975 service retirement Report of Medical Examination, and his June 1975 service retirement Report of Medical History. The Veteran's submission of these documents, and his lack of response to the June 2018 inquiry, raises questions as to whether the Veteran has additional service treatment records in his possession. Notably, the Veteran provided a July 2016 Statement in Support of Claim indicating that he is seeking his military records from January 1956 until his retirement in January 1976 because the Air Force claims that 221 pages of his service medical records from 1956 to 1976 were located at the Philadelphia VA. In support of this statement, the Veteran also submitted a May 2016 letter to the Veteran's Senator, from A.M., the Deputy Chief, Congressional Inquiry and Travel Division, Office of Legislative Liaison of the Department of the Air Force. In that letter, which was received with the above-noted July 2016 statement, A.M. indicates that after a thorough search by the 87th Medical Group (MDG), Joint Base McGuire-Dix-Lakehurst, NJ, the Veteran's medical records were located at the Philadelphia VA; and, that the [Philadelphia] VA had 221 pages of [the Veteran's] medical records dated from 1968-1976. The letter further directs that the Veteran needed to contact that office directly to obtain a copy and it lists the contact information for the Chief, HIMS at the Philadelphia VA Medical Center. There is also a handwritten note on the letter indicating that 3 calls were made, presumably by the Veteran, and no response was received. Since that time, the RO has requested post-service medical records from the Philadelphia VA Medical Center, and those Capri records have been associated with the claims file. However, it does not appear that any attempt was made to obtain the 221 pages of service treatment records from 1968-1976 from the contact (or whoever is currently the Chief, HIMS) at the Philadelphia VA Medical Center that is listed on the May 2016 correspondence from A.M. As such, the RO has not exhausted all efforts to locate the Veteran's STRs and additional development is necessary in this regard. Additionally, the Veteran was not afforded a VA examination with regard to his claims and no VA medical opinion has otherwise been obtained with regard to these claims for service connection. VA must provide an examination where there is: (1) competent evidence of a current disability, or persistent or recurrent symptoms of a disability, and (2) evidence of an in-service event, injury or disease; or the establishment of a certain disease manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability may be associated with service, and (4) insufficient competent medical evidence on file to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for finding that a disability may be associated with service is low. McLendon, 20 Vet. App. at 83 1. Entitlement to service connection for a back disability. The Veteran asserts that his current back disability, to include arthritis, is the result of an injury sustained during active duty. Notably, the Veteran's original claim of service connection for a back disability was denied in an unappealed October 2008 rating decision. However, as noted above, service treatment records were associated with the file in May 2018 that are relevant to the claim of service connection for a back disability. More specifically, the service treatment records submitted by the Veteran in May 2018 include a June 1975 separation examination and a 1975 physical profile report. The June 1975 separation examination noted chronic low back pain, back pain due to a 1974 chronic lumbosacral strain, and an inability to perform certain motions or assume certain positions due to back injury in April 1974. The November 1975 physical profile report shows lower back sprain and an order for a restriction on climbing, bending, crawling, prolonged standing or running. As those service treatment records are relevant to the claim, and, they existed at the time of the October 2008 rating decision, but had not yet been located, the original claim is now reconsidered. 38 C.F.R. § 3.156(c). In addition to the above in-service notation of a back injury with back pain noted at separation, the Veteran has been receiving current medical treatment for his back condition dating back to April 2006. A private June 2008 X-ray shows lumbosacral arthritis and lumbosacral strain. In a March 2008 private medical opinion from Dr. F, the Veteran's treating orthopedic doctor of more than ten years found: [The Veteran] has had this back condition for approximately forty years resulting from an injury sustained while in the Air Force. The probative value of a medical opinion comes from its reasoning. A medical opinion that provides no rationale or an incomplete analysis is not adequate to decide a claim. Dr. F's opinion is a conclusory statement that does not explain how Dr. F came to his conclusion. A conclusory medical opinion that is unaccompanied by rationale is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, the opinion provides an indication that the Veteran's current back disability may be related to his active duty service. As a result, VA's duty to provide an examination has been triggered, when considering the opinion along with the Veteran's June 1975 and November 1975 service treatment records documenting an in-service injury, and, the post-service medical records confirming a current back disability. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As noted above, the United States Court of Appeals for Veterans Claims (Court) has stated that the third McLendon element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. Id. As the low threshold of the McLendon standard has been met in this instance, the Veteran should be afforded a VA examination and opinion prior to adjudication of his claim. See McLendon, 20 Vet. App. at 83. 2. Entitlement to service connection for right and left hand arthritis. According to a February 2016 statement in support, the Veteran states: It is important that VA realize that as an "aircraft mechanic" during my many years in the US Air Force...as an aircraft mechanic I developed arthritis in my hands and also pain in the joints in the hands. Specifically, the Veteran asserts that working around aircraft was very physically demanding because of the turning of the tools and twisting of his hands while repairing aircraft. See March 2018 Statement in Support. The Veteran's DD214 show his occupation in service was that of an aircraft mechanic. Given the Veteran's lay statements and occupation in service, the low threshold of the McLendon standard has been met in this instance, and the Veteran should be afforded a VA examination and opinion prior to adjudication of his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for sleep apnea. According to an April 2014 statement in support of his claim, the Veteran states: ...my sleeping disorders (sleep apnea) are service connected and secondary to my problems with PTSD and the constant tinnitus (ringing in my ears). He further asserts his sleep apnea is secondary to and caused by his service-connected disability of major depressive disorder. See March 2015 Statement. In a March 2015 rating decision, the Veteran was granted service connection for major depressive disorder (claimed as any acquired psychiatric disorder to include PTSD, depression and anxiety) as secondary to the service-connected disability of bilateral hearing loss and tinnitus with an evaluation of 70 percent assigned, effective June 4, 2014. The evidence of record includes an October 2016 sleep study in which the Veteran was diagnosed with obstructive sleep apnea but no etiology was indicated. Given the Veteran's lay statements, including his more recent theory of entitlement to service connection on a secondary basis, as a result of his service-connected depression, and the sleep study showing a current disability, the low threshold of the McLendon standard has been met in this instance, and the Veteran should be afforded a VA examination and opinion prior to adjudication of his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Review the May 2016 correspondence from A.M. (received in July 2016) regarding the location of 221 pages of service treatment records located at the Philadelphia VA Medical Center and attempt to retrieve those service treatment records from the contact person currently in the position listed in the "contact information" as Chief HIMS at the Philadelphia VA Medical Center. If the contact person is no longer employed there, and the current employee in that position cannot be found, contact A.M. and any other contact deemed appropriate at the Philadelphia VA Medical Center to request additional details on the status of these records. 2. Schedule the Veteran for a VA thoracolumbar spine examination with, if possible, an orthopedic specialist to determine the current nature and likely etiology of the Veteran's back disability, to include arthritis. The examiner should note review of this remand, and the entire claims file. Following review of the record, the clinician should answer the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's back disability, including arthritis, had its onset during service, manifested as arthritis to a compensable degree within the first post-service year; or, is otherwise related to disease or injury in service? In this regard, the examiner must address the Veteran's June 1975 and November 1975 service treatment records, and the March 2008 private medical opinion. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression, and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for a VA joints/hand examination with, if possible, an orthopedic specialist to determine the current nature and likely etiology of any right and/or left hand arthritis or other hand disability. The examiner should note review of this remand, and the entire claims file. Following review of the record, the clinician should indicate all right and left hand disabilities currently present, and, answer the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's right and left hand arthritis, or other hand disability had its onset during service, manifested as arthritis to a compensable degree within the first post-service year; or, is otherwise related to disease or injury in service? In this regard, the examiner must address the Veteran's lay statements and service occupation as an aircraft mechanic. In rendering his or her opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis referable to arthritis of the right and/or left hand. However, in providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression, and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA sleep apnea examination to determine the current nature and likely etiology of the Veteran's sleep apnea. The examiner should note review of this remand, and the entire claims file. Following review of the record, the clinician should answer the following questions: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is proximately due to and/or aggravated by his service-connected depression or service connected tinnitus? (Aggravation of a nonservice-connected disability is any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease). For any aggravation found, the clinician should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. (b) If the answer above is negative, is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea had its onset during service or is otherwise related to disease or injury in service? In rendering his or her opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis referable to sleep apnea. However, in providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression, and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A complete rationale for all opinions must be offered and provided. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.