Citation Nr: 21076526 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 09-42 920 DATE: December 27, 2021 ORDER Entitlement to service connection for gunshot wound (GSW) to the left leg, claimed as secondary to bilateral hand condition, is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for bilateral upper extremity (BUE) condition, to include hand, arm and shoulder, is denied. Entitlement to service connection, to include on a secondary basis, for a sleep disorder, to include obstructive sleep apnea (OSA), is remanded. FINDING OF FACT The Veteran's GSW to the left leg did not originate in service, within a year of service, and is not otherwise etiologically related to his active service, to include as secondary to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for GSW to the left leg have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from October 1986 to April 1987. He had active duty service from March 1989 to August 1990, and from August 2002 to July 2003, with additional service in the Army National Guard. The Veteran's DD214 for his period of service from March 1989 to August 1990 shows he received an "other than honorable" discharge. A May 2020Administrative Decision determined his period of service from March 8, 1989 to August 10, 1990 was dishonorable for VA purposes under the provisions of 38 C.F.R. § 3.12(d)(3) and (4), and that he was entitled to health care benefits under 38 U.S.C. and 38 C.F.R. § 3.360(b) for any disability determined to be service connected for active service from March 8, 1989 to August 10, 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs Regional Office (RO). In August 2017, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a Board hearing. A hearing was held in March 2018. The Board remanded this case again in December 2018 and March 2021. During the pendency of the appeal, an August 2021 rating decision granted service connection for a bladder condition. Therefore, as the AOJ granted the benefit sought on appeal, that issue is no longer before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Left Leg GSW The Veteran seeks entitlement to service connection for residuals of a GSW to the left leg. Specifically, he asserts that he shot himself in his left leg while unloading a pistol. His right hand went numb, and he could not feel his finger on the trigger. See February 2009 Claim and March 2018 Board Hearing Transcript. The evidence of record includes STRs which are silent for any treatment related to a GSW. Private medical records show that in January 2006, the Veteran was treated for a GSW. At that time, he reported that he shot himself through his left anterior thigh while cleaning a pistol. The examination reported noted no neurological or musculoskeletal deficits. The wound measured approximately 2.5 inches between entry and exit. The wound was cleaned and irrigated, and the Veteran was discharged. See Private Medical Records Received July 2010. A June 2008 VA medical record shows the Veteran received a tetanus shot in November 2006 due to a self-inflicted CGW to his left leg. See VA Medical Records Received June 2008. In a February 2009 letter, the Veteran stated that he shot himself in his left leg while unloading a pistol when his right hand went dead, and he could not feel his finger on the trigger. At a March 2018 Board hearing, he testified that sometime in 2013 or 2014, he pulled a slide back on his pistol which jammed, and the pistol fired resulting in a GSW to his leg. He also asserted this occurred secondary to his claimed right hand condition. The Veteran underwent a VA examination in July 2021. The examiner noted a diagnosis for residuals status post left thigh GSW affecting Group XIV, anterior thigh muscles whose function affects extension of the knee. Entrance and exit scars were noted that were small or linear indicating short track of missile through muscle tissue. The Veteran reported that he could not recall the date of the injury. He did report that the injury occurred while he was stationed at White Sands during which he had trouble with a certain family, that they ambushed him twice shooting him one of those times. Current symptoms included pain, weakness, numbness and tingling. The examiner noted the Veteran was tangential throughout the interview and was not able to provide a clear description of how he suffered the GSW. In this regard, it was noted the Veteran reported having some memory loss and had difficulty recalling what happened. With regard to secondary service connection, the examiner opined that it was less likely than not (less than 50 percent probability)" that the GSW was proximately due to or the result of a service-connected condition. In support of this opinion, the examiner noted the Veteran's reports of having been shot in the leg by a family he had a dispute with. Therefore, the examiner stated that it was not clear what role the RUE played in the infliction of the GSW as he was reportedly shot by another individual. In addition, the examiner noted that at the time of the GSW, there was no evidence of any ulnar or carpal tunnel symptoms; symptoms which did not present until 5 years following separation from service. As such, there was no evidence that the GSW was secondary to the right arm/hand condition diagnosed in 2008. After a review of the evidence of record, the Board finds that entitlement to service connection is not warranted. In this regard, the Veteran's claim is dependent on his lay statements, which is the only evidence linking his GSW to service. In this regard, medical records clearly show that the accidental shooting incident occurred in January 2006, and, therefore, did not occur during a period of active duty service. Instead, the only evidence in support of his claim are his lay statements. However, the Board finds his lay statements not credible as he has provided drastically conflicting statements as to how and when his GSW injury occurred. First, as noted above, the January 2006 private treatment record shows he reported shooting himself while cleaning a pistol. In a February 2009 letter, he asserted that he shot himself while unloading a pistol. During his March 2018 Board hearing, he testified that the accidental shooting occurred sometime in 2013 or 2014, and that he shot himself while pulling a slide back on his pistol which jammed and then fired. During his recent July 2021 VA examination, he reported that the GSW was not self-inflected. Instead, he reported that he was shot during active duty service by another individual. Based on the number of conflicting lay statements provided, as well as statements that the GSW occurred as both self-inflicted and non-self-inflicted, the Board finds his lay statements not credible. Instead, the Board finds the January 2006 private treatment record the most probative evidence of record. That record clearly shows the Veteran accidentally shot himself in the left thigh while cleaning a pistol. This record does not evidence that the accidental shooting occurred as a result of any RUE condition as a physical examination at that time revealed no neurological or musculoskeletal deficits. The Veteran additionally did not report that the accidental shooting occurred other than due to an accident while clearing his pistol. In this regard, statements made to clinicians for the purpose of treatment are considered reliable because one seeking medical treatment is aware of the necessity for being truthful to secure proper care. See Rucker v. Brown, 10 Vet. App. 67 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). The Board recognizes that the service connection claim for BUE condition remains on appeal, and that the service connection claim for GSW residuals has previously been found to be intertwined with that claim. However, as the STRs are silent for any complaints or treatment related to a GSW, and in consideration that there is no credible evidence showing that the GSW to the left thigh occurred as a result of a RUE condition, the Board finds that the preponderance of the evidence is against service connection on either a direct or secondary basis. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REASONS FOR REMAND 2. BUE Condition This case was remanded in March 2021 to obtain a VA examination. That remand noted inadequacies of prior VA examinations. A December 2019 VA examination was found inadequate on the basis that the examiner incorrectly based a negative nexus opinion on a finding that the STRs were silent for any complaints or treatment related to a BUE condition. The Board pointed to several STRs noting complaints involving the left forearm, tingling sensation of the left index finger, numbness and tingling in the hands, pain across the elbows, and right arm numbness due to repetitive heavy lifting and overhead work. The Board also noted that STRs included diagnoses for right shoulder impingement syndrome, bilateral elbow overuse and possible tendonitis. An October 2020 VA examination was found inadequate as the examiner based a negative nexus opinion on a finding of no evidence of a diagnosed elbow condition, despite a November 2013 VA X-ray study revealing right elbow osteoarthritis. Following the March 2021 Remand, a VA examination report was obtained in July 2021. The examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran's BUE condition was etiologically related to service. In support of this opinion, the examiner stated that while the Veteran complained of BUE numbness and tingling on a few occasions during service, that none of those symptoms were specific to carpal tunnel. In addition, the examiner noted that there was no diagnosis of the condition until 2008, five years after separation from service. In this regard, the examiner stated that a condition of suggested severity would have certainly required medical attention during that five year span, and, thus, no nexus had been established. Although not requested, the examiner additionally provided a negative nexus opinion with regard to a BUE conditions secondary to the non-service-connected left leg GSW. However, the examiner did not address any other diagnosed BUE condition as directed. As noted above, during the period on appeal, he has been diagnosed with right elbow osteoarthritis and STRs note overuse of the bilateral elbow. Accordingly, a Remand is necessary to obtain another VA examination. 3. OSA The Veteran seeks entitlement to service connection for OSA on a secondary basis. Specifically, he asserts that his OSA was caused or aggravated by his service-connected lumbar spine and psychiatric disorder. The March 2021 Remand requested a medical opinion that addressed both direct and secondary service connection. The requested VA medical opinion was obtained in July 2021. With regard to secondary service connection, the examiner opined that it was "less likely than not (less than 50 percent probability)" that the condition was proximately due to or the result of his service-connected lumbar spine disability or psychiatric disorder. In support of this opinion, the examiner noted that OSA, anxiety/depression, and the lumbar spine disability were not medically related conditions. Additionally, the examiner noted that a thorough review of the medical literature failed to demonstrate any causal connection between the conditions. Specifically, the examiner noted that medical literature did not support a causative association between the service-connected conditions and sleep apnea as those conditions did not cause physical obstruction of the airway. In addition, the examiner stated that medications used to treat the service-connected conditions also did not cause a physical obstruction of the airway, and, therefore, did not cause sleep apnea. With regard to aggravation, the examiner noted no objective evidence supporting a finding of aggravation as a repeat sleep study had not been completed. In addition, the examiner noted no evidence demonstrating that the OSA had been permanently worsened beyond a natural progression. As such, the examiner stated that aggravation was not plausible. The Board finds the July 2021 VA examination inadequate. With regard to aggravation, the examiner based a negative opinion on a finding that the Veteran's OSA was not shown to have been "permanently worsened beyond a natural progression." This is an incorrect legal standard. Aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Accordingly, remand is required for an adequate VA examination and opinion. Second, with regard to aggravation, the examiner did not mention or address medications used to treat the service-connected condition. The Board finds this problematic as VA medical records note possible effects of his medications on his OSA. For example, an October 2020 VA medical record noted the Veteran was on a narcotic medication and had a history of OSA. The physician stated that any sleep medication that could potentially depress his respiratory center in his brain during sleep was not advisable. See VA Medical Records Received May 2021. Accordingly, a Remand is necessary to obtain another VA examination. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from his VA treatment facilities, and all private treatment records not already associated with the file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed bilateral upper extremity condition, to include osteoarthritis of the right elbow (see November 2013 VA X-ray study) and BUE carpal tunnel syndrome. The examiner should provide the following opinion: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral upper extremity condition, to include osteoarthritis of the right elbow (see November 2013 VA X-ray study) and BUE carpal tunnel syndrome, that is etiologically related to his period of service? The examiner is asked to consider the Veteran's STRs, including a June 1989 record showing complaints of left forearm pain due to hitting his arm on a sledgehammer with findings of left index finger tingling, December 2002 record noting complaints of pain across the elbows, numbness in the right arm, and an assessment for right shoulder impingement syndrome, bilateral elbow overuse an possible tendonitis, and a May 2003 post deployment health assessment showing the Veteran reported numbness and tingling in his hands. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed sleep disorder, to include OSA. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) the Veteran has a diagnosed sleep disorder, to include OSA, that is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder, to include OSA, was caused by a service-connected disability, to include lumbar spine disability and a psychiatric disorder, to include medications used to treat those conditions? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder was aggravated by a service-connected disability, to include lumbar spine disability and a psychiatric disorder, to include medications used to treat those conditions? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner is advised that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner is asked to consider VA medical records showing sleep deprivation related to a psychiatric disorder (See January 2014 VA Mental Health Record showing the Veteran reported going 2-3 days without sleeping), statements provided by the Veteran that he cannot sleep at night due to back pain that causes him to get up every 30 minutes, and an October 2020 VA medical record noting a potential interrelationship between the Veteran's pain medication and his sleep medication. (Continued on the next page) The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.